BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1109/2008 AGAINST C.C.No.221/2004, DISTRICT FORUM-I, HYDERABAD.
Between:
Sri Lakshmi Saraswathi Apartments
Welfare Association, having its office at
Flat No.S-3, Block-B, Second floor,
Sri Lakshmi Sarawathi Apartments,
Sikh Village, LIC Colony, Secunderabad
Cantonment rep. by its Secretary
Sri S.Saranjeet Singh,
S/o.late Sardar K.Hira Singh,
Age 45 years. Appellant/ Complainant
And
1. Sri G.Shiva Narayana,
S/o.G.Laxminarayana,
Age 53 years, resident of 2-21-2,
LIC Officers Colony, Sikh Village,
Secunderabad.
2. Sri G.Vijayanarayana,
S/o.late G.Laxminarayana,
Age 60 years, resident of 2-21-1,
LIC Officers Colony, Sikh Village,
Secunderabad.
3. M/s.Swetha Constructions
A partnership firm having its
Regd.Office at 2-21-2,
LIC Officers Colony, Sikh Village,
Secunderabad-500 009.
Rep. by its Managing Partner
Sri B.Ashok Kumar, S/o.B.Krishnamurthy
Age 32 years. ..Respondents/
Opp.parties.
Counsel for the Appellant: Sri K.K.Waghray
Counsel for the Respondents: M.N.Ravikanth Acharya.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
MONDAY, THE TWENTIETH DAY OF DECEMBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.221/2004 on the file of District Forum-I, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant, welfare association of the apartment owners, has filed the complaint against opposite parties 1 and 2, who are the original property owners and opposite party No.3, builder, who built flats and sold under different sale deeds in a semi finished stage and later completed the finishing work. The complainant submitted that there are two blocks consists of Blocks-A and Block-B. Block A consists of 16 flats and Block B consists of 16 blocks. It is the case of the complainant that the opposite parties are yet to provide so many amenities such as providing parking area, compound wall and security gate, painting, allotment of car parking area etc. It is their further case that the opposite parties have also constructed pent house on Block A and Block B illegally and un-authorizedly. The complainant got issued legal notice to opposite parties 1 and 2 seeking providing of all amenities and facilities and to vacate the pent house. The opposite parties replied to the said notice and made false allegations which are denied. The complainant submitted that recently the opposite parties started taking measurements of the terrace and when the complainant association sought information to obtaining of any building sanction for the proposed construction, opposite parties did not produce any sanction and on the other hand stated that they will take up the construction without permission from the Cantonment Board. The complainant submitted that the opposite parties are not entitled to take any construction on third floor or any other area and that the complex is a residential complex and all the common areas and amenities are the properties of the flat owners. Therefore the complainant file a civil suit in O.S.No.1116/2003 on the file XI Junior Civil Judge, City Civil court for injunction against the opposite parties restraining them from raising any further construction and the complainant has also obtained interim orders in IA No.910/2003 which are extended and the opposite parties have appeared in the above suit.
The complainant submitted that the opposite parties have to carry out the following pending works:
i) front and back lights
ii) coverage of back side drainage
iii) proper arrangement of parking area
iv) flooring of parking area and complex compound
v) compound wall and security gate
vi) construction of watchman place
vii) painting of building and complex name
viii) right of common terrace
ix) modification of drainage system (frequent blockage)
x) sump for manjira water
xi) construction of septic tank
xii) allotment of car parking area
Hence alleging deficiency in service in not clearing the above said deficiencies and also sought demolition of the pent house constructed together with compensation of Rs.10,000/- and costs of Rs.1,000/-.
Opposite parties filed version admitting that opposite parties 1 and 2 are the original owners of the property and that opposite party No.3 has taken up the construction and completed the construction of the flats in the said complex. They admitted that there are 2 blocks i.e. Block A belong to opposite party no.1,Swetha Constructions wherein opposite party No.3 is the Managing Director and Block B belongs to opposite party no.2 i.e. Archana Constructions and that there are 32 flats in the two blocks. They denied that they have not provided amenities and submitted that in respect of car parking, they have not collected any amounts in respect of the car parking and as such there is no question of providing car parking but they have provided parking for two wheelers. They denied that have illegally constructed pent houses on blocks A and B. They admitted the issuance of the legal notice by the opposite parties on 19-2-2003 for which they have issued a suitable reply on 6-3-2003. They also admitted that the complainant has filed the suit wherein they have filed their written version and the said suit was coming for trail and as the complainant failed to proceed with the case, it was dismissed for default on 23-10-2006. Opposite parties submit that the following works have been completed by them.
i) Front and back lights have been completed
ii) Coverage of back drainage has been complex
iii) Proper arrangement of parking area has been provided
iv) Flooring of parking area and complex compound has been provided.
v) Compound wall and security gate has been provided
vi) Construction of watchman place has not been provided as it was
not agreed and there is no undertaking in writing by O.Ps
vii) Painting of building and complex: As the complainant failed to
make payment, they cannot paint unless the amounts are paid.
viii) Right to common terrace: They submit that there is no disturbance.
ix) Modification of drainage system has been completed and there is no blockage
x) sump for Manjeera water has been provided
xi) Construction of septic bank has been provided
xii) Allotment of car parking: There is no commitment for providing
the same.
The opposite parties further submitted that the complainant during the pendency of the complaint filed IA No.695/2006 for appointment of Advocate/Commissioner to inspect the physical features wherein they have filed detailed counter stating that in respect of Block-A, the members of the Association are due Rs.2,43,000/- and in respect of Bloc-B, the members are due Rs.4,28,000/- and Rs.52,000/- for lift and the said amounts have not been paid to opposite parties till today. They submitted that they spent Rs.4,22,000/- in respect of front and back light, coverage of back side drainage, compound wall and security gate, modification of drainage system and submitted that unless the above mentioned amounts are paid, they will not be in a position to complete the balance works reported by the Commissioner and the Commissioner also stated almost all the pending works are completed and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A5, B1 to B5 and C1, the
District Forum held that the report of the Commissioner falsify the complainant’s allegation and it still has to pay the balance to the opposite parties and as such dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The facts not in dispute are that the complainant is a flat owners welfare association and opposite parties 1 and 2 are the land owners and opposite party no.3 is the developer, who built flats and the same were purchased and sold under different sale deeds. It is the case of the complainant that these flats were purchased in a semi finished condition and that some pending works were left out and that opposite parties are demanding extra money to complete the works. It is an admitted fact that in all the sale deeds evidenced under Exs.B3 to B5, it is clearly mentioned that the purchasers have obtained semi finished flats. The complainant herein has also filed O.S.No.1116/2003 on the file XI Junior Civil Judge, City Civil Court and also I.A.No.910/2003 for injunction and the court had granted an interim injunction restraining the respondents/opposite parties from commencing the construction or carrying on any activities in the schedule property. It is the case of the respondents/opposite parties that the appellants filed authorization letter on behalf of the association in O.S.No.116/2003 that 19 members who are flat owners have given authorization to Mr.Saranjit Singh i.e. the complainant herein to handle the cases. The learned counsel for the respondent contended that all the 32 flat owners have not given authorization and that the suit was filed in the year 2003 whereas the authorization letter was filed in the year 2006 which does not contain the date and this O.S. was dismissed for default on 23-10-2006.
It is the case of the opposite parties that they have completed the following works:
xiii) Front and back lights have been completed
xiv) Coverage of back drainage has been complex
xv) Proper arrangement of parking area has been provided
xvi) Flooring of parking area and complex compound has been provided
xvii) Compound wall and security gate has been provided
xviii) Construction of watchman place has not been provided as it was not agreed and there is no undertaking in writing by O.Ps.
xix) Painting of building and complex: As the complainant failed to
make payment, they cannot paint unless the amounts are paid.
xx) Right to common terrace: They submit that there is no disturbance.
xxi) Modification of drainage system has been completed and there is no blockage
xxii) Sump for Manjeera water has been provided
xxiii) Construction of septic bank has been provided
xxiv) Allotment of car parking: There is no commitment for providing the same.
We observe from the record, that an Advocate Commissioner was appointed to note down the 12 points raised by the appellant/complainant. Ex.C1, the advocate Commissioner report, reads as follows:
ADVOCATE COMMISSIONER REPORT
As per the directions of the Hon’ble Forum-1, Hyderabad, I have visited
the scheduled property i.e. M/S Sri Lakshmi Saraswathi Apartments at 11-45 a.m. on 22-09-07. The complainant and Secretary of the Association, Sri S.Saranjeet Sing present and O.P.No.1 and 2 were also present and both the counsels were present at the time of inspection.
The entire premises consisting east facing, North side open land, west side consisting road and South side consisting private building.
I observed the premises of M/s Sri Lakshmi Saraswathi Apartments, Sikh Village, LIC Colony, Secunderabad consisting of TWO BLOCKS – A & B and not consisting cellar. The entire premises taken Photograph which is annexed as Photo No.1.
The point-wise physical features mentioned in the Affidavit of Petitioner/Complainant are noted as here under:
1. Front and back lights:
I observed that there is light with 14 w bulb (economy bulb) CFL in two blocks separately in rare front side of premises but there are no bulbs on the back side of the premises (Photo No.2).
2. Coverage of Back side drainage:
It is observed there is C.C. slab on the backside drainage (Photo No.3)
3. Proper arrangements of Parking area:
It is observed that parking area at south side provided by O.P. upto 7 ft., and 17 ft. length to the rare front side of the premises at north side and the total area consisting for parking area is 130 ft and all the residents have parked the two wheelers only but O.P. not provided parking area for cars. Cars were parked at outside of the premises on the road of 30 ft (Photo No.4)
4. Flooring and Parking area and Complex compound:
It is observed that there is flooring within the premises compound consisting shabad rough stones of admeasuring 2 X 2 ft (Photo No.5)
5. Compound wall and Security Gate:
It is observed gates were provided at north-east corner and middle of the east (premises) with 5 ft height (Photo No.6).
6. Construction of Watchman Place:
It is observed that there is no watch man place and as per O.P. statement.
7. Painting of building and complex name:
It is observed entire premises consisting white wash and not consisting the name of the complex. The small name board existing at A block (Photo No.7)
8. Right of Common terrace:
It is observed that water tank consisting on the above at IVth floor and the terrace area consisting concrete. The passage to terrace have observed and taken as (Photo No.8).
9. Modification of drainage system(drainage block)
It is observed that the drainage connection from the premises to septic tank and from there it is connected to main nala. Hence there is no blockage is observed.
10. Sump for Manjeera :
It is observed that for A block consisting sump Manjira water at North
East Corner and for B Block at rare front side on east side (Photo No.9).
11. Construction of septic tank :
It is observed that there is septic tank on rare back side at west side for the two Blocks separately (Photo No.10).
12. Allotment of car parking :
It is observed that there is no separate car parking area as per O.P. statement (Photo No.11)
In addition to that I have also visited Block B Flat S-3 and observed there are no defects in the flat.
The physical features have observed and noted and also taken photographs point wise and the report closed by 1-45pm. The cousel for O.P have raised the objection to take the help of Technical Persons. Hence Technical Report not submitted.
The counsel for complainant left with out permission of the commissioner and O.P. counsel present till the ending of report.
The Counsel for O.P. refused to sign on the report based on the statement of O.P. that he do not believe his counsel which was endorsed by the O.P. counsel on the rough report which may be recorded.
Sd/-
Complainant
Sd/-
Opp. Party No.1
Since the physical features have been recorded and photos have been taken which are annexed with the report, the warrant issued by the Hon’ble Forum is returned herewith.
Y.V.NARASIMHACHARYULU
ADVOCATE COMMISSIONER
We observe from the record that Exs.B4 and B5 do not state anything about car parking. It is evident from the Commissioner’s report that the opposite parties have provided parking for two wheelers, the complainant ought to have been specific while agreeing to clause 17 of the sale deed which says ‘parking’. It does not clearly specify whether it is parking for two wheelers or four wheelers in the absence of any specific provision in the sale deed, the complainant cannot demand for the same. It is the case of the respondent/opposite parties that the complainant has to pay additional amounts i.e. Rs.2,43,000/- due from flat owners of Block-A and Rs.4,28,000/- due from Block-B and Rs.52,000/- due towards lift. A brief perusal of the affidavit filed by the complainant by way of evidence before the District Forum does not show that the complainant has denied this contention. The learned counsel for the appellant relied on the following decisions reported in AIR 1970 AP 375 (V.57.C 58) in Civil Revn.Petn. Nos. 2394 to 2402 of 1968 dated 22-9-1969 in which the court held that dismissal of suit occasioned by technical defect does not operate as res judicata. This complaint was not dismissed by the District Forum on the principle of res judicata but on merits after going through the Commissioner’s report. Therefore, this citation is not applicable. The appellant also relied on a decision of High Court reported in 1998 (6) ALT 540 in C.S.R. Estates, Flat Owners Welfare Association, Kothapet, R.R.District v. Hyderabad Urban Development Authority and others. The facts in the instant case are also different and the complainant did not take due care and caution before signing the sale deed in which the word ‘parking’ was incorporated but it did not specify the type of ‘parking’ whether it is meant for two wheelers or four wheelers. We also observe from the record that the complainant has not filed any evidence to state that the opposite party has enough space to provide car parking to all the flat owners and in the absence of any such evidence on record, any such direction by this Commission will not also be implementable. Keeping in view Ex.C1 report, we are of the considered opinion that the complainant has failed to establish by way of any documentary evidence that the opposite parties have to complete unfinished works, if any. The complainant has also not chosen to file any objections to the Commissioner’s report or any documentary evidence to prove that there is enough space for providing car parking for all the flat owners.
In the result the appeal fails and is accordingly dismissed.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.20-12-2010
