DATE OF FILING : 13-09-2013.
DATE OF S/R : 03-10-2013.
DATE OF FINAL ORDER : 30-06-2014.
1. Narayan Das Bhatter,
son of late Sri Sohanlal Bhatter
of flat no. 918, Block No. E.
2. Bhagwan Das Bhatter,
son of late Sohanlal Bhatter,
3. Tulsi Das Bhatter,
son of late Sri Sohanlal Bhatter,
both of flat no. 917, Block no. 5
of Sukhi Sansar, 134, Salkia School Road,
P.S. Golabari, District – Howrah.--------------------------------- COMPLAINANTS.
- Versus -
1. Sukhi Sansar Owners’ Association ( Building no. 5 )
at 134, Salkia School Road,
Howrah – 711106.
2. Sri Shiv Kumar Agarwal ,
Flat no. 520. Block – E.
3. Sri Ashit N. Ghelani,
Flat no. 618, Block E.
4. Sri Shyam Sarda,
Flat no. 919, Block – E.
134, Salkia School Road, P.S. Golabari,
District – Howrah.-------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by the complainant U/S 12 of the C.P. Act, 1986 ( as amended upto date ) against the o.ps. alleging deficiency in service U/S 2(1)(g), 2(1)(o) of the C.P. Act, 1986 wherein the complainant has prayed for a direction to be given upon the O.Ps. to repair, renovate colour of all sides of the building and also for repairing and renovating the damaged portion of the flat and roof of the building in favour of the complainant with respect to schedule property and compensation of Rs. 1,00,000/-
together with litigation costs as the o.ps. in spite of paying requisite maintenance charge in every month did not take any positive step towards the same.
2. The o.p. nos. 1 to 4 in the written version that the o.p. no. 1 is the ground of the all the owners / residence of the building and also being integral part of the larger complex known as ‘Sukhi Sansar’ and have come into a group to manage the common expenses and have been managing the same for the common interest of the flat owners. Moreover, this answering o.ps. further stated that the o.p. no. 1 has the absolute right the ultimate roof and the flat owners are only users of the ultimate roof / terrors of their respective building and as such denial all the allegation of the complainant with a view to caused loses and reputation of the o.ps. by putting the o.ps. in trouble and as such instant complaint is liable to be dismissed with exemplary costs.
3. Upon pleadings of both parties three points arose for determination :
i) Whether the case is maintainable?
ii) Is there any deficiency in service on the part of the O.Ps?
ii) Whether the complainants are entitled to get any relief and compensation as prayed for?
DECISION WITH REASONS :
4. POINT NO. 1
The agreements were executed at the behest of the o.ps. and the complainants;
deposited the total consideration money including in possession of the respective flats. The complainants jointly framed an association in the name and style ‘Sukhi Sansar Owners Association’ herein o.p. no. 1 and the o.p. nos. 2,3 & 4 are the managing committee who have taken charge of maintenance of the said building. So the o.ps. namely cannot agitate to keep themselves aloof over the question of maintenance of the whole building. In view of Section 3 of the C.P. Act, 1986 the other provision law cannot stand as bar in filing this complaint. Hence the point no. 1 disposed of.
5. POINT NO. 2 & 3
Both the points are taken up together for consideration. Admittedly there were
agreements for sale of the civil property already possessed by the complainant under their respective schedule area by registered deed of conveyance dated 20-11-1990 and 19-12-1990. Admittedly the complainant framed an association in the name of ‘Sukhi Sansar Owners Association’ herein o.p. no. 1 amongst the flat owners and o.p. no. 2 to 4 are the managing committee who have taken charge of maintenance of the said building and also opened a bank account where the flat owners deposited the monthly and quarterly maintenance charges collected from the respective units time to time for all repairing and renovation work. The complainant reported the o.ps. in several times to take step for
repairing including renovation of the said building and the o.ps. turned a deaf ear. Subsequently the complainant issued advocate notice on 19-05-2012 but the o.ps. failed to respond to the same. The complaints faced serious harassment and hazards for non taking any step by the o.p. who are the in charge of the association which tantamount to gross deficiency in service on the part of the o.ps.
We are, therefore, of the view that this is a fit case where the prayer of the complainant shall be allowed as there is gross deficiency in service. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 321 of 2013 ( HDF 321 of 2013 ) be allowed on contest without costs against the o.ps.
The O.P. no. 1 be directed to repair, renovate and paint all sides of the buildings and also to repair and renovat the damaged portion of the flat and roof of the floor of the building at the cost of association being area of common space and facility out of the maintenance charges of the flat owners within the time frame but positively within one month.
No costs in the nature of compensation is awarded.
The complainants are entitled to get a litigation costs of Rs. 5,000/- from the o.p. no. 1.
The complainants are at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( P. K. Chatterjee )
Member, C.D.R.F.,Howrah.
