Judgment:
K. Satyanand, Member:
Oral:
This is a complaint filed by M/s.Vora Towers Welfare Association alleging deficiency in service on the part of the opposite parties of whom 1 to 6 are the land owners and 7 and 8 were the builders.
The facts of the case stated briefly are as follows:
The complainant association was formed in the year 2004 and was duly registered under the Societies Registration Act. The building complex in question consisted of 8 blocks, A, B, C, D, E, F, G and H with 9 floors including the ground comprising 64 flats. The said complex was initially built in part by Mr.Vasanth Roy Vora, opposite party No. 2, who represented M/s. Janatha Industrial Corporation (India) renamed as M/s. Janatha Industrial Foundry Works, opposite party No. 1. Apposite parties 3 to 6 are his brothers and sisters. They were in fact the owners of the entire extent of the land upon which the complex was planned. After the construction reached to a certain level, opposite parties 7 and 8 joined the said owners for constructing some of the blocks in the said complex. During the progress and also after completing the construction, the flats were sold to the purchasers and the said sales were going on till the month of April, 2005. After quite some of them purchased the flats in the said complex, those flat owners in the complex formed the complainant association in 2004 for maintaining the complex and carrying out their activities as per the wishes of the members. After purchasing the flats, the members of the complainant association started living in the apartments. Soon they noticed various defects and problems in the said complex which have been enumerated in the complaint as para 3 (v) (a) to (p). The complainant made efforts to pursuade the builders to rectify those defects, omissions and commissions constituting the deficiency in service but with no avail. As such the association filed the present complaint.
While opposite parties 1 to 6 who are virtually owners of the land and who made over the construction work though they initially took up for some time, to opposite parties 7 and 8 by virtue of some development agreements, entered appearance and filed counter. Opposite party No. 7 though served with the notice remained absent. So also opposite party No. 8. Opposite parties 1 to 6 filed a combined counter affidavit which later they adopted as their evidentiary affidavit objecting to the maintainability of the C.D. on the ground that earlier the self same complainant filed C.D.S.R. No. 1779/2006 and the same was withdrawn by the complainant without specifically taking any liberty or permission to file a fresh complaint. So much so, it was contended, that it was barred by res judicata. Opposite parties also took the plea that the complaint itself was barred by limitation inasmuch as the flat owners obtained possession way back in 2002 while the C.C. was filed in 2006. Adverting to the various so called deficiencies pointed out they gave replies one by one repudiating their liability or claiming compliance in certain cases or pointing at opposite parties 7 and 8 only as being accountable. They also contended that inasmuch as the construction of the building including the unfinished part was entrusted to opposite parties 7 and 8 and inasmuch as they themselves took a share in the built up area and occupied, in pursuance thereof, certain flats, they could by no stretch of imagination be characterized as builders along with opposite parties 7 and 8. Thus they pleaded that they were liable to be absolved from the allegation of deficiency in service which, if at all, could be established has to be established only against opposite parties 7 and 8. They ultimately pleaded that the complaint be dismissed.
In support of their case, an affidavit of the Secretary of the Association is filed. The association-complainant relied upon documents marked as Exs. A1 to A12. On the other hand, opposite parties filed a memo requesting the Commission to read the counter affidavit, got filed by them as their evidence. They too relied upon Exs. B1to B13.
Heard both sides.
The points that arise for consideration are:
(i) Whether the complaint which is admittedly a successive complaint is maintainable?
(ii) Whether the complaint is barred by limitation?
(iii) Whether the complainant could succeed in proving the deficiency in service on the part of the opposite parties? If so to what extent?
(iv) Whether the complainants are entitled to any relief?
1. It is abundantly clear from Ex. B1 that the complainant earlier filed a C.D. against these very same opposite parties and had withdrawn the complaint. It is a case of pure withdrawal without any permission superadded to it. The said order reads as follows:
âThe learned Counsel, Mr. S. Nagesh Reddy, appearing for the Complainant submitted that he wants to withdraw the complaint. Accordingly the C.D. is dismissed as withdrawn. Office is directed to return the papers to the complainant immediately.
Though the Commission hesitated for a while to take this second complaint on file on account of earlier withdrawal, by an order dated 1.9.2006 it took the complaint on file observing that the earlier complaint was withdrawn with a view to file it afresh. The addition of the words âwith a view to file it afresh are not at all warranted by a plain reading of the above excerpted order. Be that as it may, opposite parties in their counter have clearly taken the plea, that the present complaint is not maintainable for the reason that the complainant did not get any liberty to file it afresh. This assertion of the opposite parties in the counter is not even adverted to much less contradicted by the complainants in the evidentiary affidavit filed on their behalf. Though Civil Procedure Code is not applicable to debar this complaint under the specific provisions enshrined therein in this regard, the fact remains that the principles of natural justice nevertheless apply. By withdrawing unconditionally, automatically a right accrues in favour of the opposite parties or the defendants to be assured of cessation of cause of action. Such vestiture of absolute right in favour of the defendants could have been averted if only the complainant or the plaintiff had taken care to take liberty if so entitled, or take leave of the Commission to file a fresh suit; but no such request was made and no such permission or liberty was granted by the Commission. The withdrawal of the earlier complaint therefore was absolute. It is also not the case of the complainant in the affidavit on their behalf that the present complaint was not the same as the one that was withdrawn. Thus it is crystal clear from these circumstances that a withdrawn case is resurrected. Now it has to be seen whether there is any impediment that debars a second complaint for the same cause of action after the first one is dismissed as withdrawn. The validity of the views have to be ultimately tested on the touch stone of the rulings of the superior Courts especially the Supreme Court. In New India Assurance Co. Ltd. v. R. Srinivasan, I (2000) CPJ 19 (SC)=II (2000) SLT 520=II (2000) CLT 30 (SC), the Honble Supreme Court had an occasion to deal with the maintainability of a second complaint when the first one was dismissed for default. It was answered in the affirmative. We do not see any reason to say that decision is not applicable here though it is quite possible to argue that consequences of default and withdrawal exercising ones volition are totally dissimilar. Thus the objection raised by the opposite parties for the maintainability of this C.D. cannot be countenanced.
2. Next coming to the point of limitation as is already stated, in a recent judgment of the Honble Supreme Court stated in unequivocal terms that it is the bounden duty of Court, this or for that matter any Court, to meticulously see whether the case before it is well within limitation or not. In the present case even though the opposite parties in their affidavit filed on 30.7.2007 asserted that the flat owners took possession way back in 2002 and started living therein, the complainant association failed to contradict the said assertion in the affidavit filed on its behalf on 29.1.2008. If the complainant had filed the construction (or sale) agreement and the sale deeds which are purported to be of the period from 2002 to 2005 as per Ex. A8, the approach to limitation point would have been totally different and appreciation of truth would have been made easy. Be that as it may, the opposite parties 1 to 6 too failed to contradict Ex. A8 though they had opportunity as Ex. A8 was filed along with the complaint. This takes us to the truism that the collective cause of action arose in 2005 and the complaint was filed before 2 years ran out. It is now a well settled proposition that the deviation from the terms of the construction (or sale) agreement would constitute deficiency in service, notwithstanding the fact that the complainant acquired title and possession to the apartment by virtue of the sale deed and the delivery of possession thereof. But the complainants avoided filing the construction (or sale) agreement and the sale deeds.
3. It appears the complainants pointed out the defects on the basis of their experience after they came to live therein. At this juncture, it is necessary to go into the position of law that governs the relationship between the promoter/builder and the consumer/apartment taker to precisely identify the rights, liabilities and obligations of the parties.
4. The allegation centering round the flat ownership and the attendant deficiencies, if any, in the execution of building contract and conveyance of perfect title in favour of the apartment takers is some what in a confused state. It is therefore necessary to properly figure out the legal incidents and implications in this kind of transactions to catching the complexities for the just adjudication of the disputes between the promoters of apartments and the aspiring takers or allottees or purchasers of apartments. In order to have a firm grip over the matter, it is essential to first know the law applicable in the matter. The rights and liabilities as also mutual obligations between a builder (technically called promoter) under the A.P. Apartments (Promotion of Construction and Ownership) Act, 1987 and the rules thereunder (hereinafter called for brevity the Act and the Rules) are marked to be principally governed by the said Act and Rules as the intendment of the Act is explicit from its very title that it was tailored to ensure, inter alia, vestiture of the ownership of the flat in the person, who contracts with a promoter absolutely in terms of the construction agreement as fortified by the Act, Rules and the formulations thereunder. Unfortunately this intendment suffered and still stands crippled from myriad of disorders of a grave degree inasmuch as those disorders are, as presently shown congenital eluding remedies within the frame work of the Act. It is not out of place to exhort oneself at this stage of the fact that in this discussion our endeavour must be to know what is the law prevailing in Andhra Pradesh in the matter of apartments, but not what ought to be or should be the law. So we have to examine the whole problem from this ground reality. The first and foremost feature of this malady is the truncated application of the Act. The entire Act is not straightaway applicable to the property and consequently to the process of sorting out disputes between the apartment taker and the promoter. Ostensibly the entire Act has come into force in the entire State of Andhra Pradesh by virtue of notifications activating the Act into operation. Yet the Act itself resorted to a strange double speak in the sense that the whole bulk of the Act comprised in Chapter III is rendered optional in its application. We very rarely come across cases and the present case is no exception, where sole owner or all the owners of the property submit themselves to the provisions of Chapter III. It is too obvious to articulate that invidious results flow out of the owner of the property being confided with the power to do or undo the applicability of Chapter III which contains a good number of benefits for the good of the apartment owners.
5. There is a misconception even among the so called well informed that the submission to the provisions of Chapter III is by act of all the contracting persons including the apartment takers. But the more important limb of the provisions of Section 2 relevant to this discussion gives a different dispensation.
Section 2 reads as follows:
â2. Application of the ActâThe provisions of this Act, excepting Chapter III, shall apply to every property and the provisions of Chapter III, shall not apply to any property, unless the sole owner or all the owners thereof submit the same to the provisions of that chapter by duly executing and registering a declaration as hereafter provided.â
âProperty in the above is very much defined by Section 3(n) as follows:
â3(n) âPropertyâ comprises the land, the building and the common areas and facilities.â
So it is clear from the combined reading of Section 2 and Section 3(n) of the Act that the benefits of Chapter III can be conferred on the flat owners or aspirants of owning flats only at the mercy of the owner or owners of plot of land, the building and the common areas and facilities. The expression âThe owner or owners of ................ the building does not take in its fold the purchasers and potential purchasers of flats as is evident from the language of Section 2 and Section 3(n), Section 14, Section 17 of the Act and Rules 12, 14(3) and Forms IV and VI, etc. This view is fortified by the Act that it only mentioned owner or owners of ................. building ................. but not of apartments. The wrong impression that even the apartment owners have a say in determining the scope of declaration the harbinger of the application of Chapter III to the property in question, was engendered for the first time when the title of Rule 14 was broken into two one âDeclaration and the other âDeeds of Apartments. We do not know where from the rule making authority got this dichotomy. It does not find a place in Sections 2, 14 and 15 the masters of Section 17. Rule 14 brought into picture âDeeds of Apartments not at all contemplated by Section 17, and on the other hand, there is internal evidence in Section 17 itself, that it adverted to only instruments of declaration, amendment thereto and withdrawal thereof and nothing more. It is therefore obvious that âDeeds of Apartments are no way in contemplation of Sections 2, 3(n), 14, 15 and 17 of the Act. When once the âDeed of Apartment is found to be irrelevant to âDeclaration, the illusion of Apartment Owners, who in fact scarcely come into existence before the mandate in Section 7 is complied with, and of the prospective purchasers of flats too, being able to join in the declaration wanes away. Thus, the scheme of the Act is so designed that the âveto power of the promoter can frustrate the object of the Act itself to a very large extent leaving a few crumbs to the flat purchasers, present and prospective, to feed themselves upon and at the end of the day find themselves in utter disillusionment.
6. Be that as it may, the urgent need of the hour is to consolidate the law available to the apartment takers, as now existing, to protect their rights and to the adjudicatory bodies to do even handed justice to both sides as judiciary does not hold brief to either of the warring parties before it. In this investigation, it is apt to present itself to us that in the absence of declaration factoring in Chapter III of the Act, Sections 1 to 7 and Sections 28 to 35 of the Act only remain to govern the relations between the consumer and the service provider like the builder or the promoter in the matter of apartments. But Section 32 of the Act drastically curtails the rigour of its sweep though at the same time tried to fortify the rights of the consumers by drafting in the other laws unraveling of which always makes matters worst confounded. But at the same time, we cannot shy away from the realities of law. By virtue of Section 32, the applicability of Transfrer of Property Act for the transactions of Apartments is fully saved. The effect of Section 32 of the Act, appears therefore to be, stated in simpler terms, that though Section 7 and the kindred provisions address the competence of the promoter to convey title to the purchaser of the flat, it is not all that simple when the builder and the land owner happen to be two different persons or entities with varying degrees of interest. If we go by the law contained in Transfer of Property Act and the Contract Act, the builder merely as builder cannot convey title to the undivided share in the land notionally co-related to each apartment. No doubt the definition of âcommon areas and facilities includes the âland on which the building is located. But unfortunately, the empowerment of the promoter in this regard peripherally contemplated by Section 7 is silent on this aspect and, more over, all the more impaired by decoupling the applicability of Chapter III by making it optional. It is only Chapter III especially Sections 8, 9 and 14, etc. therein of the Act that indicates that the promoter was under an obligation to convey âcommon areas and facilities as well. But Chapter III is not freely available for harnessing in the absence of declaration. In such an event, it is as good as a dead letter. In this scenario of facts, the parties are left with no option except to rely upon construction (or sale) agreement, brochure for which Section 4 of the Act lends some amount of legal sanctity, provisions of Contract Act, Transfer of Property Act and to a certain extent Easements Act and on the top of all these the proceedings issued by the authorities of local self Government like municipal corporation, municipality and Gram Panchayat, which not infrequently imposes certain terms and conditions required to be complied with by the builder/promoter/developer.
7. The most common difficulty the Consumer Fora often comes across is the impossibility of the convergence of the construction agreement between the builder and the flat taker on one hand and the development agreement between the land owner and the builder on the other. They run parallel in the sense that the land owner and the apartment taker stay put outside each others agreement with the builder who is common to both the agreements. Unless the land owner joins the execution of the title deed in favour of the apartment vendee, his title to the property would not get perfect as unfortunately the Act in its truncated form hardly empowers the promoter as such to convey title of the property including the land on which the building is located as a part of âcommon areas and facilities. As such conveyance of comprehensive title of the property by the builder is consigned to Section 7 but reinforced by Section 9 which is in Chapter III the applicability of which in a given case is solely dependent upon the exercise of such volition by the owner of the property which term scarcely covers the intending or prospective purchaser of the apartment. No doubt Section 7 which is lying outside Chapter III mandates the promoter to execute a proper conveyance of the apartment in accordance with the agreement under Section 5 and give possession of the Apartment to the transferee after discharging of encumbrances unless the apartment is sold subject to encumbrances.
8. It is in this view that we are able to say that the construction agreement out shines out reaching the sale deed in favour of the flat owner, in the matter of adjudicating the grievance relating to the deficiency in service exemplified by the defects, omissions and commissions in the construction and provision of facilities. Thus the construction (or sale) agreement plays a very vital role in establishing the case of the flat owners when it comes to proving the case of deficiency on the part of the builder. Though the complainant enumerated several defects as sub-paragraphs (a) to (p), they did not take trouble to co-relate those grievances to the corresponding terms in the construction agreement as no construction agreement between the promoter and the individual flat owner has been filed in this case. However some of those grievances are capable of being shown as violation of express provisions of law and the other cognate law including the building plan sanction proceedings. So an endeavour has to be made to correlate each grievance with the corresponding status in regard to that grievance as observed by the Commissioner and further with the source of right in relation to such grievance as for example corresponding terms of the contract or provisions of the law, etc., as the case may be in order to mold the remedy. The Commissioners report is marked as Ex. C1. Opposite parties 1 to 6 filed objections to the same.
Under Ex. B2 construction of C and D blocks was entrusted to opposite party No. 7. Under Ex.B3 further construction of A and B blocks was entrusted to Mr. G. Krishnamraju, it appears as an individual, though, he otherwise represented opposite party No. 7 as M.D. under Ex.B4 construction of E and F blocks was also entrusted to opposite party No. 7. inasmuch as the opposite parties 1 to 6 did not answer the description of promoters except to a limited extent of having constructed a part of blocks A and B their accountability for the present grievances is almost nil though the compulsions of law require of them to refrain from, indirectly, dissuading the builders discharge their obligations by raising untenable competing claims. Both the builders remained absent and they did not contest the case. As opposite parties 7 and 8 remained ex parte and thereby failed to contest that they were the builders and as opposite parties 1 to 6 also urged that they were the builders corroborating the assertion of the complainant besides relying in that regard on Ex. B2 to B5 (only against opposite party No. 7) there is absolutely no difficulty in holding that opposite parties 7 and 8 answer the description of âpromoters within the meaning of the provisions of the Act. So there is no difficulty in relying upon the Commissioners report to appreciate the truth or otherwise of each of the defects pointed out by the complainant on the basis of the observations of the Commissioner. Then the next step would be to examine whether the lingering defects pointed out by the Commissioner are amenable to rectification either in terms of contract or by law and other bilaterally binding material. Summing up the law that the grievances have to be taken through, we have the following material:
(i) Brochure having the force of law derived from Section 4 of (A.P. Apartments Promotion of Construction and Ownership) Act and Rules, 1987.
(ii) Agreement of sale between the individual flat owner and promoter.
(iii) A.P. Apartments Promotion of Construction and Ownership Act and Rules, 1987, Sections 1 to 7 and 28 to 35.
(iv) Relevant provisions of Transfer of Property Act.
(v) Relevant provisions of Contract Act.
(vi) Proceedings in connection with permit/sanction of the plan.
(vii) Easementary Rights Act.
Apart from those species of law further material is available from the admissions in the pleadings and documents relied upon by each other apart from the Commissioners report subject to objections, if any, filed by the opposite parties accountable.
9. None of the parties including contesting opposite parties 1 to 6 as also the complainant association filed the agreement of sale as between the builder and the individual flat taker. On the other hand, the opposite parties 1 to 6, who contested this matter clearly showed by tendering the documentary evidence marked as Exs. B2, B3 and B4 that they themselves gave their partially constructed property for development to opposite parties 7 and 8. So it is only opposite parties 7 and 8 that answer the description of the promoter. One of the sources to discern the rights of the complainant is such an agreement. It is rather incomprehensible as to why the complainant association failed to produce such a vital document. It seems there is a tendency to canvass adverse inference in that regard against the opposite party/promoter or builder on the basis of non-production of such an agreement by the promoter. In the present case, the promoter/builder arrayed as opposite parties 7 and 8 remained ex parte. Likewise any brochure of information that induced the flat purchaser to go in for purchase of the flat is also accorded recognition as a statutory document by the provisions of Section 4 of the A.P. Apartments (Promotion of Construction and Ownership) Act, which has got universal application because it is outside the optional part of the Act. Such a brochure does not also seem to have been filed by the complainant. Certain provisions of Transfer of Property Act and the Contract Act have the capacity to supplement the terms of the agreement between parties. In order to derive profit from such enriching provisions it requires a great deal of analysis of law and martialling of the facts constituting each deficiency and the corresponding statutory warranty that may be available in those two Acts which over reach even the agreement translated into conveyance. Unfortunately such professionalism is seldom to be seen. No doubt in the matter of adjudicating deficiency, the fact that the sale of the flat was registered and possession was delivered do not deter the Forum from going beyond and investigating into the deficiencies in the execution of work as such. But in order to brand any omission or commission as the deficiency that omission or commission must be ascribed to some source. This kind of correlation between the grievance on one hand and the law prohibiting the said grievance on the other insofar as they belong to the realm of the warranties in that regard found either in the Contract Act or Transfer of Property Act are not articulated. Now coming to the mandatory requirement of providing certain of the facilities which the complainants complained about as having been deprived, are those that belong to the realm of Chapter III of A.P.Apartment Promotion and Ownership Act but unfortunately in the present case there is no evidence that the property is subject to an option whereby the property is brought within the purview of the provisions of Chapter III of the A.P. Apartments (Promotion and Ownership) Act. It is presently shown incidentally how these grievances could have been effectively remedied had there been the activation of Chapter III to their case by the requisite declaration. Thus on a proper filtering of the law available to us to administer here for the proper adjudication of the complaint we are left with the few sections of A.P.Apartment Act as referred to above and the proceedings in connection with the permit/sanction of the plan.. These defects pointed out are enumerated in para 3(v)(a) to (p).
(a) Fire Fighting Equipment: The provision of fire fighting equipment is a duty cast upon not only the promoter but also the apartment owners as per the Apartments Act. The averments in the complaint state as if the entire burden is with the promoter though Section 25 is in the optional Chapter III which is not applicable to the present case holds otherwise. It is pertinent to point out that if we go by the Apartments Act all members/owners of the apartments are required to provide fire fighting preventive devices. However, the builder is bound by the terms of the sanction order issued while obtaining the approved plan. It is clearly stipulated therein as follows: âthat the party shall follow the instruction of the Director of Fire Services, A.P., Hyderabad in HOC No. 150/MSB/B1/99 dated 12.11.1999. The proceeding relating to sanction of plan is marked as Ex. A12, which is also relied upon by the other side as one of Exs. B12 and B13. Therefore, though the promoter could avoid that total liability by referring to the provisions of A.P. Apartments Act, he cannot escape his liability in that regard imposed by the M.C.H. while sanctioning the plan which they came to rely upon for going ahead with the project. The sanction proceedings found in Ex. A12 on one hand and A.P. Apartments Act on the other govern two distinct fields and it is for the contending Counsel to thoroughly articulate on any repugnancy, if any, in order to rely solely upon Section 4(6) of Apartment Act. He did not do such a thing and did not even refer to Section 32 of the Apartments Act. In any view of the matter, opposite parties 1 to 6 tried hard to bail out opposite parties 7 and 8 from the liability of providing fire fighting equipment; but as already pointed out the provisions of Section 25 of the Apartment Act are not applicable here as they remained in optional arena and it was never invoked. The provisions of Sub-section (6) of Section 4 cannot also be relied upon to canvass repugnancy for the simple reason that the promoter/builder was already fastened with the liability of providing fire fighting equipment by the provisions in relation to that condition in Ex. A12. It is quite possible to urge that as per Section 32 of A.P. Apartments (Promotion of Ownership Act) all other laws, except those that are specifically mentioned therein, must yield place to it and therefore the sanction proceedings purportedly issued under the provisions of HMC Act are no exception. But in our view, aforementioned Section 32 can hardly have such efficacy so long as the Act is kept truncated by withholding the declaration and thereby impeding the Apartment Act becoming wholesome taking care of all those consumer beneficial clauses in the sanction proceedings.
(b) In order to adjudicate the tenability or otherwise of grievance âb, it is essential for us to see what was agreed upon in that regard which is generally found only in the agreement of sale but which is not before us. Nonetheless Ex. A12 sanction in condition No. 20 clearly stated that the stilts should be used exclusively for parking of vehicles without any partition walls and rolling shutters at any time in future etc., opposite parties 1 to 6, however contend that 140 sq. yds. was not common area but there is no disputing the fact that the said area furnishes place for approach roads to the cellar. So the objection has to be brushed aside.
(c) There is no doubt that cellar area is a common area. What applies to grievance âb applies with equal force to âc also. So the same area cannot be utilized in any other manner than what is indicated in the sanctioned plan. So the claim of the complainants has to be upheld. The cellar has to be cleared off of all the unauthorized constructions.
(d) It is urged by the complainant that the opposite parties were making use of some of the flats for commercial purpose but the Commissioner observed that both the parties accepted before him that there was no beauty parlour run in flat No. A1. So this allegation has no basis.
(e) The grievance âe pertaining to conveyance of unequal undivided shares in the site, requires the examination of the sale deeds by this Commission but those sale deeds are not filed. Even otherwise the sale deeds became final and it is beyond the scope of this Commission to reopen the sale deeds more so when the sale deeds are not before this Commission.
(f) As could be seen from the complaint under point âf, it is a money claim to reimburse the amount they claimed to have paid for car parking which according to them was illegal. But there is no proof that they so paid to get them free and also that they were entitled to as after all the sale deed and the preceding sale agreement that are competent to speak are not filed.
(gandh) As regards the claim of the flat owners to the terrace portion, it is clear from the definition of common areas and facilities under Section 3(d) that all parts of the property conducive to its existence, maintenance and safety and all other uses like installation of tanks, etc. come under the common areas and facilities. So there should be no hesitation to hold that even the terrace has to be designated as common area which therefore very obviously belongs to the community of flat owners. When terrace has to be thrown open to the flat owners, it is but obvious that the builder should provide the stairs giving them access to the terrace for the benefit of the flat owners. So the complainant is entitled for this relief also.
(i) This is rather trivial and it is not for the builder to go on giving them facilities endlessly. If any necessities arise after the execution of the project, by and large, it is for the flat owners to make arrangements of their own. So the claim under âi cannot be granted.
(j) The claim under âj also indicates some damage to the drainage and this is rather trivial grievance and in any view of the matter, the flat owners association must attend to it.
(k) Coming to âk, it is the case of the complainant that no water harvesting pit was dug by the builder. This lapse on the part of the builder attracts the provisions made in Ex.A12 to the following effect: âThe rain harvesting pit to be constructedâ. So it is the duty of the builder to provide rain water harvesting structure. Opposite parties 7 and 8 have to do the same.
(l) The claim âl is also a grievance that is ascribed to the wear and tear and further maintenance. This aspect has to be addressed by the flat owners association itself and it is not anymore the business of the builder.
(m) Water seepages and leakages are complained under âm. This also pertains to the realm of proper maintenance and it is the responsibility of the association to make arrangements for proper maintenance. The builder cannot be fastened with any liability under this.
(n) The allegations under ân are very vague and the complainant cannot expect any relief on the basis of vague allegations
(o) The claim under âo is also very trivial and the complainant association could very well afford to do the needful in that regard and it cannot be accorded the status of a big grievance.
(p) As regards the handing over of the statutory documents to the complainant association, whoever is having the largest chunk will be in possession of the originals and all the other will be provided certified copies thereof. There can be no change in this settled position of law.
10. So the reliefs granted and the reliefs that are not granted to the complainant are summarized hereunder as follows:
"TABLE"
Inasmuch as some lapses, omissions and contrary commissions are found against opposite parties 7 and 8, it has to be held that they were guilty of deficiency in service. This issue is answered accordingly.
Inasmuch as there are several heads of deficiency in service found in the foregoing discussion supra, the complainants are entitled to the relief to that extent.
Accordingly the C.D. is allowed partly directing opposite parties 7 and 8 to comply with the deficiencies pointed out as under:
(1) Fire Fighting Equipment: Must be provided by opposite parties 7 and 8 for the simple reason that the promoter/ builder was already fastened with the liability of providing fire fighting equipment by the provisions of sanction-of-plan proceedings.
(2) Stilts should be used exclusively for parking of vehicles without any partition walls and rolling shutters at any time in future, etc.
(3) Cellar area is a common area. What applies to grievance âb applies with equal force to âc also. So the same area cannot be utilized in any other manner than what is indicated in the sanctioned plan. So the claim of the complainants has to be upheld. The cellar has to be cleared of all the unauthorized constructions.
(4) Terrace Area: As regards the claim of the flat owners to the terrace portion, it is clear from the definition of common areas and facilities under Section 3(d) that all parts of the property or conducive to its existence, maintenance and safety and all other uses like installation of tanks, etc. come under the common areas and facilities. So there should be no hesitation to hold that even the terrace has to be designated as common area which therefore very obviously belongs to the community of flat owners. When terrace has to be thrown open to the flat owners, it is but obvious that the builder should provide the stairs giving them access to the terrace for the benefit of all the flat owners. So the complainant is entitled for this relief also.
(5) Water harvesting pit: Water harvesting pit was not dug by the builder. This lapse on the part of the builder attracts the provisions made in Ex.A12 to the following effect: âThe rain harvesting pit to be constructedâ. So it is the duty of the builder to provide rain water harvesting structure. Opposite parties 7 and 8 shall do the same.
The builders namely opposite parties 7 and 8 are further directed to pay an amount of Rs. 3,000/- by way of costs to the complainant association. Opposite parties 7 and 8 are granted six weeks time to comply with all these deficiencies pointed out above. Dismissing the complaint against opposite parties 1 to 6, it is observed that the compulsions of law require of them to refrain from, indirectly, dissuading the promoters i.e. opposite parties 7 and 8, discharging their obligations in terms of this order, by making untenable competing claims especially in the matter of passages affording access to the cellar (stilt) and car parking area.
Complaint partly allowed.