BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 31^ST DAY OF JULY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 12 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Directing to execute and register the Deed of declaration as contemplated u/s 2 of the Karnataka Apartment ownership act, 1972; consequently, to constitute the Provisional Managing Committee, as per the Bye-Laws being part of the registered DOD; and to hand over all the properties, assets and documents to the association, in default, the Ops to pay damages of Rs.30,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments, jointly to do the needful, in pursuance to the order/direction, in this regard.
2. Directing the Ops to immediately complete the work relating to providing the fully Air-conditioned and well-equipped Gymnasium, Party-hall, Children Park, Rain water harvesting and solar water heater system, in default, the Ops to pay rs.45,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
3. Directing the Ops to immediately install stand-by sound-proof generator, with automatic system to connect the lift, water pumps and common areas, emergency power backup to all the apartments and intercom facility connected with the security booth and wherever necessary, to rectify the defective items existing ones, in default, the Ops to pay Rs.40,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
4. Directing the Ops to immediately prepare the floor-chart of parking slots on the basement floor and allocate the parking slots by draw of lottery, as the limited common area and facility to each of the complainants and other purchasers of apartments, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments so as to enable the complainants and other purchasers of apartments to effect the same;
5. Directing the Ops to hand over the khata certificates of the respective apartments individually, in the name of each complainants and other purchasers of apartments, in default the Ops to pay Rs.25,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get khata certificates.
6. Directing the Ops to duly account for, with the receipts for making various deposits and other payments received from the complainants and other purchasers of apartments, in default, the Ops to refund all such sums of money not accounted for;
7. Directing the Ops to immediately arrange for the Kaveri water connection to the apartments with the necessary plumbing, in default, the Ops to pay Rs.35,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get the Kaveri water connection;
8. Directing the Ops to immediately cause removal of all the vehicles, equipments unauthorisedly parked in the project compound and to remit the parking-charges collected by them, to the association’s account;
9. Directing the Ops to immediately cause to disconnect the water supply connections given to the residence belonging to the OP No.3 and also to the opposite building where kanara bank and other establishments are functioning and to remit the water charges for the use of water so far, to the association’s account, in default to pay Rs.1000/- to each of the complainants to get it done;
10. Directing the Ops to desist and not to pressurize and harass the complainants and other purchasers of apartments to consent for the Ops to convert/utilize the area earmarked for party-hall and the car parking slots etc., into rooms for travel agency, shops or for any other purpose and also allow the Ops to construct pent-house over the terrace etc;
11. Directing the Ops to immediately to provide/install necessary pump-set to lift water from the sump to the over-head water tank, with necessary plumbing and electrical connection, by disconnecting the existing pump-set connected from the bore-well directly to the over-head tank, in default, the Ops to pay Rs.15,000/- to each of the complainant and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all this work done;
12. Directing the Ops to install/provide proper devise for automatic power connection from the generator to lift, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
13. Directing the Ops to complete re-erecting of the compound-wall, demolished on 13.12.2013 and partly re-erected at the instance of police officials, in default, the Ops to pay Rs.3,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
14. Directing the Ops to vacate and clear the place meant for party-hall, which is illegally and forcibly occupied by OP No.4;
15. Directing the Ops to provide safety gate-door to the terrace and also the locking facility to the pump-set at the sump level, in default, the Ops to pay Rs.1,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
16. Directing the Ops to immediately provide and functionalize the proper and required rain-water harvesting system, in default, the Ops to pay Rs.15,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
17. Directing the Ops to hand over all the original documents of title to the land, approved building plan, electrical/water sanitary designs and drawings, approvals/permissions granted by various authorities for construction of building, guarantees, warrantees for lifts, generator, water lifting pump and all other gadgets, installations and also the bills/receipts for payment of up-to-date property tax, deposits made with other authorities, in default, the Ops to pay Rs.25,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get the duplicates/certified copies of the same;
18. Directing the Ops to hand over the original receipt of security deposit for common meter for electric supply, with No objection certificate for transfer the same into the name of the association, in default the Ops to pay Rs.15,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
19. Directing the Ops to immediately rectify/redo and complete the defective/pending and sub-standard items of construction and provide the necessary provisions, as communicated to the Ops by the complainants’, in default, the Ops to pay rs.20,000/- to each of the complainants’ and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get them done;
20. Directing the Ops to immediately, execute and register the rectification-deeds of the respective sale-deeds conveying the apartments to the complainants and other purchasers of apartments by properly incorporating the necessary particulars of respective car-parking slots in the schedule of property, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get them done, in pursuance to the order.
21. Directing the Ops to initiate/obtain the completion certificate from the concerned authority, in respect of the apartment project, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
22. Directing the Ops to pay the personal compensation of Rs.2,00,000/- by way of liquidated damages, to each of the complainants for all the inconvenience, sufferings and mental agony suffered by the complainants, due to the deficiencies in service, caused by and the recalcitrant attitude of the Ops.
23. Directing to pay Rs.10,000/- way of reimbursement to each of the complainants, towards cost/legal and other charges, expenses incurred, by the complainants in respect of this complaint;
24. To pass such other order/direction/relief to the complainants, as this Hon’ble Forum deems fit.

2. The case set up by the complainant in brief is as under:-

They are the bonafide purchasers of their respective apartments from the Ops by paying huge amount for consideration. There are few more apartment purchasers though intended to join the complainants could not be included as they are out of station/country. Since the Ops have grave deficiency in their service by violating their provisions of law practiced fraud breach of trust, dangerously affecting all the complainants and other purchasers of the apartments in the same manner. There is no validly constituted representative body to represent them. Hence they are forced to lodge this complaint formally being common in respect of common problems.  They have filed this common complaint for the benefits of all the complaint owners.

3. It is the specific case of the complainants that they were impressed by the proposals made by the Ops in their printed brochures/pamphlets as SSVR LUPIN HOMES TO WATCH YOUR STYLE newspaper publication etc., the complainant and other purchasers have agreed to purchase the plots.  Hence around April 2012 they entered into agreements to purchase their respective apartments along with undivided share, right title and interest in the common areas in the said apartment project. Hence these complainants are the bonafide consumers.
4. It is further case of the complainants that all the complainants by making necessary arrangements by way of housing loans from banks and other private augmentation of funds paid the entire agreed consideration amount in respect of their respective apartments ranging from 30,66,000/- to 40,18,000/- along with additional amount towards BWSSB and electric charges and vat and towards additional amenities and further towards covered car parking slot demanded by the Ops apart from service tax stamp duty and registration charges and legal charges.
5. It is further case of the complainants that the complainant and other purchasers of the apartments were in badly need of their apartments relying on the assurance and promise of the Ops, that they would complete all the unfinished incomplete items of the construction work within few days informally took their possession of respective apartments in and around July/August 2013 pending completion and execution of registration of deed of declaration and obtaining occupancy certificate as required/promised.  Subsequently the Ops have also executed registered sale deeds in July/august 2013 in favour of complainants and other purchasers conveying the respective apartments purchased by them along with specified percentage of the undivided right, title and interest in the common areas and facilities. The Ops have manage to obtain the occupancy certificate dated 03.10.2013 pending completion of several items of the construction work, so as to enable the complainants and other purchasers of the apartments to lawfully occupy their respective apartments.
6. It is further case of the complainants that after taking informal possession of the apartments the complainants and other purchasers have noticed that several items of the construction were not completed and many of the items of the construction were defective and improper and of substandard. Inspite of repeated request and reminders made by the complainants and other purchasers the Ops have not done the needful.
7. The project of the Ops necessarily governed by and the Ops are bound to comply with several statutory provisions including Karnataka Ownership flat act 1972, Karnataka apartment ownership act 1972 and the rules framed there under. In addition to that the Ops are also bound to strictly comply with the requirements of various terms and conditions contained in the building licence, approval of building plan issued by various authorities and also other terms and conditions as required/imposed by local authorities from time to time and all the promises representations made as well as terms and conditions contained in the respective agreements to sell/sale deeds.
8. It is further grievance of the complainant that inspite of their repeated requests the Ops failed to bring apartment project under the purview of Karnataka apartment ownership act 1972 by executing /registering the deed of declaration and they are also failed to constitute consequent lawful association of apartment owners to manage its common areas and facilities. Due to the chaotic conditions and absence of management of the common areas and facilities in the project premises the complainants and other purchasers of the apartment are put to very precarious /dangerous pitiable conditions caused by the Ops.  These complainants and other purchasers have issued legal notice, dated 09.02.2014 to the Ops demanding the Ops to rectify their deficiency in their service by complying with legal and contractual obligations immediately but the Ops are turning duff ears and even started telephonically threatening some of the complainants and other purchasers of apartments with dire consequences if the complainants initiate any legal proceedings.
9. It is further grievance of the complainants that after receiving the entire amount of consideration from the complainants and other purchasers and forcing them to occupy their respective apartments the OPs virtually disappeared abruptly from the project without making any arrangement or security and maintenance and keeping all the pending works unattended.  The Ops till now have executed the deed of declaration and they are avoiding to execute and register the DOD. Consequently no association is constituted to take up the administration, maintenance and management of the apartment as required by law.
10. It is further grievance of the complainant that even though the Ops have promised to provide well equipped air condition, gymnasium a party hall, a children park, rain water harvesting and solar water heating system, stand by sound proof generator for common areas, lift water pumps, power back up for each apartment, intercom facility for each apartment, the Ops have not yet provided them till now.  The Ops have failed to mark and allocate specific car parking slot to each of the complainants and other purchasers till today.  Even though more than 8 to 9 months have lapsed after the execution of the sale deeds, the Ops have not handed over the khata certificates in respect of the individual apartments.  This has caused non acceptance of property tax by BBMP/local authority for the year 2014-15 and to be eligible to get the 5% rebate in the property tax payable by the complainants.  Apart from agreed basic consideration amount, the Ops have collected additional amount of Rs.75,000/- towards BWSSB charges and Rs.75,000/- towards electric meters deposit and Rs.2,05,200/- towards WAT, Rs.1,00,000/- towards additional amenities from each of the complainants. The Ops have not duly account for the same with proper receipts and it amounts to criminal breach of trust and criminal misappropriation of funds and it is punishable with fire and imprisonment.  Even though the Ops have collected huge amount from the complainants, towards water supply and BWSSB deposit, they did not provide kaveri water connection properly to the project and they are prolonging the matter.
11. It is further grievance of the complainant that the Ops are illegally and unauthorisedly letting out or permitting several outsiders to park the vehicles inside the compound of the apartment project creating nuisance to the occupants in utter violation of the condition of occupancy certificate. The Ops have illegally given water supply connection from the project building to the neighboring house belonging to accused No.3 and also to the opposite building, where canara bank and commercial establishments are situated and the complainants are forced to pay the water bills and electrical charges for those illegal connections.  The Ops are also pressurizing the complainants to allow them to utilize the area earmarked for party hall to be converted into a room for some travel agency, shops and for other unauthorized purposes.  The Ops are also pressurizing the complainants to give their consent to allow the Ops to construct pent house over the terrace and allow them to convert certain car parking slots into shops which is in violation of the conditions of the occupancy certificate. The Ops are not cutting the iron rods separating from the pillars and not completing the parapet wall around the terrace floor and also part of the compound wall.  The iron rods are causing danger to the passers by especially the children.
12. It is further grievance of the complainants that the Ops have provided only one pump set for lifting the bore well water upto the overhead tank as per the approved plan and they are required to provide two pump set one for lifting water upto the sump and other for lifting the water from sump to the overhead tank.  The Ops have not provided the devise for automatic power connection from the lift to the generator resulting in people being struck up in the lift frequently when the electricity fails until someone notices and starts the generator to supply current to the struck up lift and extricate them causing trauma and life threatening danger to the complainants.  In addition to this the Ops have also made an attempt to demolish the compound wall and front portion of the compound wall to erect some illegal unauthorized structure. The complainants had to seek a police assistant to prevent the Ops from doing the demolition work.  The OP4 has unauthorisedly, forcefully occupied the place expected to be party hall and carrying on some business activity illegally. The Ops have not provided safety gate door to the terrace and kept it open which is a life threat for the complainants. The semblance of the rain water harvesting provided by the Ops is not at all functioning. The Ops are required to hand over all the original documents of title to the land from approved building plan electrical water sanitary designs and drawing approvals given by various authorities but they did not do so. Nor they are arranging for such services and they are making the complainants to face unavoidable sufferings inconvenience and night mare.
13. It is further case of the complainants that the complainants are in dark about the security deposit collected from them in respect of the common electrical meters the Ops are required to hand over the NOC for transfer of the meters in the name of the association.  The Ops have not yet completed and many of the defective substandard and improper items of construction have not been rectified.  The sale deeds executed in favour of the complainants the Ops have not mentioned about the car parking slots without which the sale deeds are defective. A few apartments are in actual custody and occupation of Ops. The use of the electricity and water for those apartments are collected from the common pool without any payment towards the same and illegally burdening the complainants and other purchasers.  The Ops are totally indifferent and conveniently neglecting their contractual and legal obligations in respect of the project without bothering about the fate and sufferings of the complainants. There is no management of the common areas and facilities.  There are cautions by various authorities about serious terrorist threat, theft and robbery threat, imminent in the city of Bangalore hence the complainants are continuously suffering from mental agony and trauma due to the deficiency in service caused by the Ops. The act committed by the Ops clearly amounts deficiency of service and unfair trade practice as contemplated under consumer protection act 1986. Hence the complainants have filed this complaint.
14. In response to the notice, OP1 to 6 appears before this Commission and files version.
15. It is the case of the OP1 to 4 that they were the absolute owners of the property bearing No.BBMP khata NO.1544/70/8/51 totally measuring 16.5 guntas with other properties. They have entered into registered JDA with 5^th and 6^th Ops on 31.03.2011.  The Ops have developed multi storied apartment building popularly known as SSVR Lupine in accordance with approved plan. It is in all having 36 apartments.  The construction has been comprehensively completed. Nothing has been left unattended. The Ops have taken all necessary care and caution in accomplishing the project to make it fit for a human habitation.
16. The Ops have admitted that the complainants have purchased their respective apartments in SSVR Lupine. The Ops have also admitted that they are bound by the Karnataka Ownership Flats act 1972 and Karnataka apartment ownership act 1972 and rules framed thereof including BBMP building bye laws. These Ops are always ready and willing to act in consonance with law and also to the interest of the complainants. These Ops have incessantly shown their readiness and willingness to facilitate the apartment owners to form and incorporate the association of apartment owners as per the act to execute and register the deed of declaration. Their effort to bring the owners of apartments together has proved futile resultantly either the deed of declaration or the formation and incorporation of association of apartment owners remains a mirage to this day.  Their indecisiveness made the things stand still and for which these Ops are not held responsible.
17. It is further case of the Ops that the apartment owners have occupied their respective flat in April 2013. These Ops are obliged to shoulder the onus of maintenance of common area only for one year from the date of handing over the possession of the flat. Thereafter their association of apartment owner shall bear it.  The 1^st complainant is taking care of maintenance of the common area he himself volunteered in collecting the amount in cash from the apartment owners towards maintenance charges and he has declined to receive the said amount in cheque stating that these system shall continue till the formation and incorporation of apartment owners association otherwise it would cause accounting problem.
18. It is also the case of the Ops that they have made provision for gymnasium party hall children park, rain water harvesting, solar water heater equipments, sound proof generator for common areas, lift water pumps, power back up meter board, post box for each apartment, telecom facility to each apartment and service security personal none of these facilities is running short. Separate provision has been made to store bore well water and the water supplied by BWSSB Bangalore. Require capacity pump set has been fixed to lift the water from water tank to the over head tank, adequate power back up facility has been provided to ensure uninterrupted power supply all the care has been taken to keep the lift pump set, generator etc., in functional state. The allegations made by the complainant in this regard are fictitious.  The Ops have also made provision for parking the vehicle in the basement floor of the apartment, marking of parking area and its allotment to each apartment owner has been made on clockwise.
19. It is further case of the Ops that they are ready and willing to facilitate the apartment owners to mention the parking area allotment to each of them in the sale deed as and when the apartment owners come forward to execute the rectification deed in terms of the agreement of sale deed. They are ready and willing to lend a hand to the apartment owners to enable them to change the khata in their respective names.  They have made all the deposits and payments to the concerned authorities on time towards water electric supply and such other services. They have not unduly collected even single paise from the apartment owners.  The Ops have denied that they have allowed the authorized strangers to park their vehicle within the premises of the apartment and they have converted the party hall into rooms to accommodate the travel agency, shops and other unauthorized or illegal purpose uses. They didn’t even whisper anything either about the construction of pent house at the top of the terrace or converting of parking slots into shops. Crust gate is affixed at the entry point of the terrace for safety of the inmates. The allegations made by the complainant are all false. They are ready to hand over the documents of title and other documents to the apartment owners jointly. It needs to be in the custody of a person who is accountable to the apartment owners. The Ops have made it clear to the complainants and urged them to form the association. A few apartments are under the ownership of the Ops and they are bearing over head charges on par with other apartment owners. The precincts of the apartment are properly surrounded by compound wall and it is well secured.  The Ops have taken care of the security measures. Security person has been deployed around the clock and all the seven days of the week. These Ops are also the inmates of the apartment. Had there been any deficiency of service these Ops would be affected equally and the apartment owners would have join the hands of the complainants. This indicates that the complainants have approached this forum with ulterior motive and malafide intention. These Ops are neither coercing nor intimidating or harassing either the complainants or the other inmates of the apartment. They are not indulging in any kind of unfair practice or deficiency in extending the services to the apartment owners. These Ops are civilized and hailing from cultured family. Their attitude etiquette and performance are well received by the society. The allegations made by the complainants are an attempt of character assassination. The complainants have driven this Ops to this Hon’ble forum to tarnish their goodwill in the society and put them into great hardship and mental agony for no fault of these Ops. Hence the OP1 to 4 prays to dismiss the complaint.
20. The OP5 and 6 have also filed their version stating that the 5^th OP is a partnership firm i.e., M/s SSVR constructions, builders and promoters and 6^th OP Smt.N.Rajalakshmi are its partners. The OP5 and 6 have also filed their version repeated all the allegations made by the OP1 to 4 in their version and prays for dismissal of the complaint with cost.
21. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

22. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

23. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version and documents filed by the parties.
24. The complainant No.1 has filed his affidavit evidence on his behalf and also on behalf of other complainants.  The complainant has produced 7 copies of documents and also 3 additional documents in support of his contention.  On the other hand the Ops have not filed their affidavit evidence. It is undisputed fact that the complainants and other purchasers of the apartment have entered into agreement to purchase the respective apartments with undivided share around April 2012 with OPs. They have paid the entire agreed consideration amount in respect of their respective apartment ranging from Rs.30,66,000/- to 40,18,000/- along with additional further amounts of Rs.75,000/- towards BWSSB charges, Rs.75/- towards electric meter deposit, Rs.2,05,200/- towards vat and Rs.1,00,000/- towards additional amenities, and Rs.2,000/- towards covered car parking slot demanded by the Ops apart from service tax, stamp duty and additional charges.  The complainant and other purchasers have informally took possession of their respective apartments in or around July or August 2013 pending completion and execution/registration of deed of declaration and obtaining occupancy certificate as required/promised as they are in badly need of their apartments.  Subsequently, the Ops have also executed and registered the sale deeds in favour of complainant and other purchasers of the apartment conveying their respective apartments purchased by them with specified percentage of undivided right, title and interest in the common areas. Later the Ops have also managed to obtain the occupancy certificate dated 03.10.2013 pending completion of several items of construction work so as to enable the complainant and other purchasers of the apartment to lawfully occupy their respective apartments.
25. After taking informal possession of the apartment the complainants have noticed that several items of the constructions were not completed and also many of the items of construction were defective, improper and substandard. Inspite of repeated demands and requests made by the complainants and other purchasers the Ops have not done the needful.
26. The complainants have filed this complaint seeking relief against the Ops to direct them to register deed of declaration as contemplated u/s 2 of Karnataka Apartment Owners act 1972 and to immediately complete the work relating to providing air condition and well equipped gymnasium, party hall, children park, rain water harvesting and solar water heater to provide stand by sound proof generator, to prepare the floor chart for parking slots on the basement floor and allocate the parking slots to hand over the khata certificate, made various deposits to the concerned authorities/departments for providing necessary basic amenities, to provide kaveri water connect etc., in default to direct the Ops to give them compensation to get the above mentioned work done together with compensation of Rs.2,00,000/- to each and litigation cost.
27. After service of the notice the Ops have appeared later when the case was set down for arguments after completion of evidence of complainant and filed their version.  The Ops have not at all admitted all the allegations made by the complainants.  They have accepted and expressed their willingness to do the needful in respect of the following items i.e., 1. DOD claim at paragraph 17A of the complaint, 2. Marking and allotment of parking slots, para 17D of the complaint, 3. Rectification deed of the sale deed incorporating the parking slot, 4. Obtaining khata certificate, 5. Handing over receipts and documents, 6. Pent house, scap holding to be removed.
28. The Ops have admitted to complete the above said 1 to 6 demands made by the complainants.
29. The Ops have also taken the contention that the construction of the apartment was completed way back in the year 2012 and the same was almost occupied and the BBMP also issued occupancy certificate to that effect.  These Ops were to look after the maintenance of the premises only till the completion of one year.  It is the apartment owners who have to form an association and take responsibility of the maintenance of the apartment including gymnasium and common areas.  At the time of construction as well as completion the air conditioner was working properly with power supply. The 1^st complainant who has collected the amount from the flat owners towards maintenance and the same has to be answered by him.  It is false to say that the air conditioner and also the stabilizer have no power supply. When the Ops have made all efforts to implement the air conditioner and stabilizer and without power supply clearly establish that the power connection has been damaged and ill maintained by the complainant No.1 and associates.
30. It is further contention taken by the Ops that the complainants and other occupants without themselves co-operating and joining in the formation of the association and not being any maintenance amount alleging falsely that the party hall has been operated as some travel agency. The complainant and other occupants are using the party hall for the celebration of birthdays of their children and to celebrate gruha pravesam/house warming ceremony and get together from last three years. If the party hall is not maintained from the complainants and other occupants cannot use the party hall for celebrating the functions.
31. It is further case of the OP that the children park is prepared as per the suggestion of the complainants and other occupants only.  The occupants have suggested even at the time of registration of the agreement itself that the children park shall not be cement floor as it would increase the chances of physical damage of the children and the same shall be of grass and mud. The Ops have not agreed to have any marbles or granites to the children play area and it is not even suggested by the complainants and other occupants.
32. The OPs further denied that they have not provided de-rain water harvesting. It is further case of the Ops that the BBMP has issued occupancy certificate only after itself satisfying that the building construction is as per the plan and it has incorporated its dream project rain water harvesting. The solar water heating equipments are working to its best condition and its future is also dependent on the occupants interest in forming the association and its maintenance. The generator has specified at the time of construction has been installed and it is very much within the knowledge of the complainants. They have also provided water pumps and the same was also inspected by the BBMP authorities before issuing the occupancy certificate. They have provided the power back up as agreed as per the standard. Meter board is fixed, but it is more than 3½ years the building construction was completed and it is submitted that all the bolts were fixed but the same has been removed or being destroyed as the occupants have not formed the association for its maintenance. They have further admitted that there is intercom and telephone facility is available in the premises. However the security booth was situated adjacent to the compound work and the same has been destroyed in between the occupants and others. They have provided kaveri water supply and due to lack of maintenance from the complainants and other occupants it has been damaged and the same is attributable to the complainants.
33. It is further case of the Ops that they have provided all the facilities but the same has not been managed by the complainants. The complainants have come up before this commission with unclean hands due to nonpayment of charges by the occupants to the concerned departments.  The notices might have been delivered to the complainants. In case of defaults on the part of the Ops the notices would have served to the Ops and not to the complainants. If anyone has to be blamed for the deficiency if any it is the complainants themselves and they cannot blame Ops, who have completed their work and handed over the possession of the premises way back in the year 2012.
34. On these back ground we have gone through the report submitted by the commissioner, who was appointed by this Commission to visit the apartment and to submit the report.
35. It is pertinent to note here that even though the Ops have raise their objections in their written arguments about the commissioner report, they have not filed any objection to the commissioner report and the report is not at all set aside by this commission.
36. Under these circumstances, there is no impediment for this commission to accept the report submitted by the commissioner as an additional piece of evidence.
37. It is clear from the commissioner report that the gymnasium is situated at basement floor. AC is fixed on the wall but it is not working. It is not at all connected to any power point. One part of the wall is not fully closed upto the roof but half way towards the party hall. The commissioner has also produced the photograph as annexure 1 and 2. One tread mill is in working condition and the gymnasium contains four cross trainer out of which three are partly working and digital meters not functioning and other one is not at all working.  The party hall is situated at basement adjacent to the gymnasium. 45 plastic chairs are placed and one side of the wall is partly open towards gymnasium, the sealing is in very bad condition.  Children park is situated on the back side of the building and he has also provided the measurement and also reported that the four/ground not finished. There is only one rotation sitting wheel for children and one slider and one zula/swing.  The commissioner has observed that there are marks of three pits are found in the compound towards rain water harvesting. Since they are closed/underground and it is not possible to ascertain whether they are functioning. There are totally four solar water drums on the terrace, each containing four solar panels. It is also clear from the commissioner report one generator is placed and it is working but creating sound. It is not sound proof. There is no automatic connection to the lift and it is manually operated. There is one water pumps of 7.5 hp submersible for the bore well is functioning. There are other two pumps and they are placed at the sump and all the three pumps are working but cables are not properly fixed and dangerously hanging in the sump. There is no automatic power backup to the lift but the generator is manually operational. HV caution board is not affixed on transformer and HV rubber mat, caution board on the meter board etc., are not provided at all. There are no fire safety measures at all near meter board. There is no security booth and it is not existing within the compound. The commissioner was unable say regarding the water supply given by the Ops to external entities since they are not visible at that time.
38. The commissioner further stated that there does not exist any pent house. The terrace floor is unfinished and it is hopelessly bad, having several crack and seepage to the apartment under neeth and causing heavy leakage and traces of cutting of pillars are seen on the terrace. The compound wall appears to be newly patched up or reconstructed with several patches and bares different colour/patches and not finished properly. The commission has also annexed totally 12 annexures with his report to show the condition of the apartments and observations made by him after inspection of the entire apartment.
39. Even though the Ops have specifically denied the allegations made by the complainants and other occupants about the facilities and the grave deficiency in their service by several provisions of law but they have not agreed to rectify the defects stated by the complainants and other occupants relating to the air condition, party hall, children park, rain water harvesting, solar water heating equipment, generator water pumps, power back up, meter board, telecom facility, water supply to external entities, pent house, finished and plastering of compound wall. The complainants have also requested the Ops to complete the pending incomplete item of work and to complete the parapet wall on the terrace and to provide proper devise for automatic power connection from generator to the lift and also requested this commission to direct the Ops to pay the arrears of maintenance charged by the Ops to the apartments occupied by them and their relatives.
40. It is also clear from the evidence, documents and the commissioner report which are placed on record that the Ops who are duty bound to complete the construction work of the apartments in terms of the agreement of sale and registered sale deed suddenly vanished from the seene without making any arrangement for completion of the remaining work in the apartment and common areas and also without completion of the legal requirement under the various acts applicable to such housing project.  The Ops have failed to bring the said project under the purview of Karnataka apartment ownership act 1972 by registering the deed of declaration as contemplated therein and made each of the complainants as the exclusive and independent owners of their respective apartments and have also failed to constitute lawful association of apartment owners to manage the common areas and facilities as contemplated under the Karnataka Apartment Ownership Act 1972. The complainants have listed their serious grievance about the defects and deficiency in services on the part of the Ops in the complaint and it is also supported by the very admissions made by the Ops and also the commissioner report which is not at all challenged by the Ops. There is no reason to disbelieve the evidence and the documents placed by the complainants and also the commissioner report certainly the complainants have to shell out huge amount to rectify the said defects and also to get the necessary documents from the competent departments as alleged in the complaint.
41. Under these circumstances, the Ops shall have to directed to attend the defects noted in the complaint and in the event of default in the Ops shall have to be directed to pay the money as demanded by the complainants.
42. In view of the discussions made above, we are of the opinion that the complaint filed by the complainants deserves to be allowed in part and Ops shall have to be directed to complete the incomplete work in common area, rectify the serious defects as mentioned in the complaint and also comply all the legal requirements as required under law. Due to the callous attitude of the Ops the complainants have been put to great hardship, inconvenience and mental agony all these days for which the Ops shall have to be directed to pay compensation of Rs.50,000/- to each of the complainants apart from cost of the proceedings Rs.10,000/- to the complainants. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

43. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. Ops are directed to execute and register the Deed of declaration as contemplated u/s 2 of the Karnataka Apartment Ownership Act, 1972; consequently, to constitute the Provisional Managing Committee, as per the Bye-Laws being part of the registered DOD; and to hand over all the properties, assets and documents to the association, in default, the Ops to pay damages of Rs.30,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments, jointly to do the needful, in pursuance to the order/direction, in this regard.
3. Ops are directed to immediately complete the work relating to providing the fully Air-conditioned and well-equipped Gymnasium, Party-hall, Children Park, Rain water harvesting and solar water heater system, in default, the Ops to pay rs.45,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
4. Ops are directed to immediately install stand-by sound-proof generator, with automatic system to connect the lift, water pumps and common areas, emergency power backup to all the apartments and intercom facility connected with the security booth and wherever necessary, to rectify the defective items existing ones, in default, the Ops to pay Rs.40,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
5. Ops are directed to immediately prepare the floor-chart of parking slots on the basement floor and allocate the parking slots by draw of lottery, as the limited common area and facility to each of the complainants and other purchasers of apartments, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments so as to enable the complainants and other purchasers of apartments to effect the same;
6. Ops are directed to hand over the khata certificates of the respective apartments individually, in the name of each complainants and other purchasers of apartments, in default the Ops to pay Rs.25,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get khata certificates.
7. Ops are directed to dully account for, with the receipts for making various deposits and other payments received from the complainants and other purchasers of apartments, in default, the Ops to refund all such sums of money not accounted for;
8. Ops are directed to immediately arrange for the Kaveri water connection to the apartments with the necessary plumbing, in default, the Ops to pay Rs.35,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get the Kaveri water connection;
9. Ops are directed to immediately cause removal of all the vehicles, equipments unauthorisedly parked in the project compound and to remit the parking-charges collected by them, to the association’s account;
10. Ops are directed to immediately cause to disconnect the water supply connections given to the residence belonging to the OP No.3 and also to the opposite building where kanara bank and other establishments are functioning and to remit the water charges for the use of water so far, to the association’s account, in default to pay Rs.1000/- to each of the complainants to get it done;
11. Ops are directed to desist and not to pressurize and harass the complainants and other purchasers of apartments to consent for the Ops to convert/utilize the area earmarked for party-hall and the car parking slots etc., into rooms for travel agency, shops or for any other purpose and also allow the Ops to construct pent-house over the terrace etc;
12. Ops are directed to immediately to provide/install necessary pump-set to lift water from the sump to the over-head water tank, with necessary plumbing and electrical connection, by disconnecting the existing pump-set connected from the bore-well directly to the over-head tank, in default, the Ops to pay Rs.15,000/- to each of the complainant and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all this work done;
13. Ops are directed to install/provide proper devise for automatic power connection from the generator to lift, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get all these items properly attended;
14. Ops are directed to complete re-erecting of the compound-wall, demolished on 13.12.2013 and partly re-erected at the instance of police officials, in default, the Ops to pay Rs.3,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
15. Ops are directed to vacate and clear the place meant for party-hall, which is illegally and forcibly occupied by OP No.4;
16. Ops are directed to provide safety gate-door to the terrace and also the locking facility to the pump-set at the sump level, in default, the Ops to pay Rs.1,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
17. Ops are directed to immediately provide and functionalize the proper and required rain-water harvesting system, in default, the Ops to pay Rs.15,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
18. Ops are directed to hand over all the original documents of title to the land, approved building plan, electrical/water sanitary designs and drawings, approvals/permissions granted by various authorities for construction of building, guarantees, warrantees for lifts, generator, water lifting pump and all other gadgets, installations and also the bills/receipts for payment of up-to-date property tax, deposits made with other authorities, in default, the Ops to pay Rs.25,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get the duplicates/certified copies of the same;
19. Directing the Ops to hand over the original receipt of security deposit for common meter for electric supply, with No objection certificate for transfer the same into the name of the association, in default the Ops to pay Rs.15,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
20. Ops are directed to immediately rectify/redo and complete the defective/pending and sub-standard items of construction and provide the necessary provisions, as communicated to the Ops by the complainants’, in default, the Ops to pay rs.20,000/- to each of the complainants’ and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get them done;
21. Ops are directed to immediately, execute and register the rectification-deeds of the respective sale-deeds conveying the apartments to the complainants and other purchasers of apartments by properly incorporating the necessary particulars of respective car-parking slots in the schedule of property, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get them done, in pursuance to the order.
22. Ops are directed to initiate/obtain the completion certificate from the concerned authority, in respect of the apartment project, in default, the Ops to pay Rs.5,000/- to each of the complainants and other purchasers of apartments, so as to enable the complainants and other purchasers of apartments to get it done;
23. Ops are further directed to pay compensation of Rs.50,000/- to each of the complainants apart from cost of the proceedings of Rs.10,000/- to each of the complainants.
24. The OP shall comply this order within 60 days from this date.
25. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 31^ST day of JULY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

 NIL