M/S Sree Sai Krishna Constructions M.V.P. Colony Rep. by Its Managing Partner and Others Vs. P. Radha Krishna and Others - Court Judgment

Oral Order (Sri R. Lakshminarsimha Rao, Member)

The appeal is challenged to the order passed by the District Forum-II, Visakhapatnam in C.C.No.812 of 2003.

The factual matrix of the case as set out in the complaint is that the complainant entered into construction agreement with the opposite parties and purchased undivided share in the total extent of 570 sq.yards each in an extent of 46 sq. yards whereby the opposite parties agreed to provide car parking slot to the complainants. The opposite parties did not provide car parking slot even though they were bound to provide it for each and every flat owner as per the byelaws of the apartment and in view of the decision of High Court of A.P. The opposite parties are bound to provide car parking slot and for not providing it they have to pay compensation. On 23.9.1998 registered sale deed was executed and consequent to failure of the opposite parties to provide parking slot, legal notice dated 24.10.2002 was got issued by the complainant.

Opposite parties resisted the claim. It was contended that the

car space for any apartment would be limited and car parking space only be sold to those flat owners on the basis of first come first basis. The owners have to opt for purchase of the parking space also. Provisions of parking place is a separate transaction and it need not necessarily be purchased by all the flat owners. The intending purchasers may purchase parking space as to their requirement on priority basis, according to availability of the parking space and the same is stated in clause 9 of the Construction Agreement. The complainant had suppressed the fact with a view to enrich themselves. The byelaws are not concerned with the parking space and they are concerned with the maintenance of the apartments by the residents welfare association. The complaint was filed after a long lapse of time from the date of purchase of their respective flats. The complainants would have demanded for car parking space at the time of execution of the construction agreement if really he was in need of the car parking slot. The complainants have not paid any amounts towards car parking charges. Hence, prayed for dismissal of the complaint.

The District Forum has allowed the complaint directing the opposite parties to earmark parking slots for each of the complainants and pay a sum of Rs.2500/- as compensation to the complainants.

Aggrieved by the order of the District Forum, the opposite parties have preferred the appeal contending that the District Forum had erred in interpreting the common area; it has not considered clause 18 of the Construction Agreement wherein it was specifically agreed that the car parking would be provided on cost basis and that there was no space available for allotment of parking slots since those parking slot were already allotted to other flat owners who opted for and paid the amount therefor.

The point for consideration is whether the complainants are entitled for the allotment of the car parking slots as per the terms of the construction agreement?

The dispute in a narrow compass is whether the construction agreement provides for allotment of any car parking slots to the complainants. The complainants purchased undivided share for the total extent of 570 sq.yards, each in an extent of 46 sq yards and entered into construction agreement with the oppose parties. The complainants claimed the car parking slots as common area in terms of Sec.9 of the A.P. Apartment Act and relevant provisions of byelaws and also as per the terms of the Construction Agreement.

The complainants got issued Ex.A1 legal notice in the month of October 2002 stating that contrary to the agreement, the opposite parties did not leave the space for car parking and did not provide any car parking even though they were bound to provide car parking slots for each and every flat owner. Ex.A3 sale deed does not specify any car parking slot in favour of the complainants. What all stated in Ex.A3 is 46 sq.yards and it does not have any mention of common area particularly in regard to the car parking slots. The opposite parties have contended that the construction agreement, Clause 9 of the A.P.Flats and Apartments Act do not have any concern with the car parking space to all the flat owners irrespective of their choice, payment of parking charges etc. Clause 9 of the A.P. Apartments (Promotion of Construction and Ownership) Act and Rules, 1987 reads as under:

9. Common areas and facilities:- Each apartment owner shall be entitled to the percentage of undivided interest in the common areas facilities as expressed in the Declaration. Such percentage shall be computed by taking as basic, the value of the apartment in relation to the value of the property, and such percentage shall also reflect the limited common areas and facilities.

The agreement for construction was executed on 4.9.1998 between the complainants and the opposite parties with the conditions laid down therein are that the building shall be constructed in accordance with the plan and design sanctioned by the municipal corporation of Visakhapatnam. Clause 19 of the Construction Agreement reads as under:

The PURCHASERS shall have the right to enjoy and use along and all other common amenities provided in the Scheduled land as per the sanctioned Plan for the development of the same. The Car parking in the Cellar floor are allotted to the Flat PURCHASERS on priority basis at the cost of Flat PURCHASERS.

A bare perusal of clause 19 of the Construction Agreement would show that the car parking slots are allotted on payment to the flat owners on first come first get basis. The complainants and the opposite parties as well had referred to the clause 19 of the Construction Agreement and in the absence of any other terms in the construction agreement it has to be construed as to the place to be purchased by way of separate transaction. The only plea that the complainants had taken is that common area mentioned in clause 19 of the Construction Agreement covers within its ambit car parking slots also.

Now coming to the phrase ‘common area i.e., mentioned in clause 19 of the Construction Agreement, we have to make a reference to Section 2 of the A.P. Flats and Apartments Act. The relevant section defining the common area reads as follows:

2. Application of the Act:- The 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 he same to the provisions of that chapter by duly executing and registering a declaration as hereafter provided.

Hence, it is clear that the word ‘common area does not include the car parking slots. A combined reading of Sec.2 and 19 of A.P. Apartments (Promotion of Construction and Ownership) Act and Rules, 1987 and Apartment Act and clause 19 of the Construction Agreement would amply clarify the matter that the word ‘common area does not contemplate inclusion of car parking slots and any car parking space allotted to a flat owner is subject to payment of proportionate amount and also according to the availability of the car parking slots.

As the construction agreement is the basis of the rights of the parties to the proceedings, the complainants and the opposite parties as well are bound to be governed by the terms and conditions therein. As aforesaid, the terms of the construction agreement does not provide for any car parking slot to a purchaser of the flat and it is made available to the flat purchasers only on payment of the amount and subject to availability. Hence, we are inclined to accept the contention of the appellants/opposite parties that the complainants are not entitled to any car parking slots more particularly, in the light of the terms of the construction agreement as also the statement of the opposite parties in their counter that there was no car parking space left as all the car parking slots were sold away to the purchasers on priority basis. Hence, the appeal deserves to be allowed.

In the result, the appeal is allowed and consequently the complaint is dismissed. In the circumstances, the parties shall bear their own costs.