Sunita C. Bagewadi, Member
The brief facts of the complaint are as under:-
2. The complainants submitted that there are around 252 Flats in Phase 1 of “P” Block, Platinum City and the B.D.A. by following due process of law had granted partial occupancy certificate on 12.01.2011 in favour of the Opposite Party Nos. 1 & 2 who are the owners, Developers and Builders, permitting them, the occupation and possession of 252 flats of the Platinum city. It is further submitted that after obtaining the development plan sanctioned by the BDA in accordance with the resolution No.8/95 dated:19.06.1996 and in pursuance of the work order issued on 05.12.1996, the construction of “O” Block building consisting of 616 flats was completed. The flats were sold to the persons belonging to lower and middle income group in order to comply with the norms set out in the resolution of the BDA No.8/95 dated:19.06.1196, work order dated:05.12.1996 and government order No.HUD 341 MNX 95 dated:17.11.1995. The complainant further submitted that the Opposite Party Nos. 1 & 2 accordingly executed the absolute sale deed in favour of the purchasers of Flats duly registered in the jurisdictional Office of the Sub-Registrar and put the purchasers in possession of the Flats. It is further submitted that the Opposite Party No.1 Sharif Constructions is the developer of the plot of land in Sy.No.47 and 48 comprising in all 34 acres 28 guntas in Peenya Village, Yeshwanthpura, Bengaluru. The Opposite Party No.2 NACONS is the builder with whom Opposite Party No.1 had entered into joint venture agreement on 18.09.2003 for the development of “O” block in the said land on certain terms and conditions enumerated in the sale deed executed by the Opposite Party Nos. 1 & 2 in favour of purchasers and put them in possession of flats.
2(a) The complainant further submitted that Opposite Party Nos. 1 & 2 applied for grant of occupancy certificate in respect of “O” Block of Platinum City during December 2010 enclosing all the necessary documents such as structural stability certificate from the Structural Engineer, Completion Certificate from the registered architect, consent letter from KSPCB, Assessment from BBMP, Khata of the above said project dated:12.08.2010, the affidavit filed by the developer to obtain NOC from Fire Force Department was also filed. It is further submitted that the Engineer Officer – 2 and the Executive Engineer North Inspected the “O” Block on 29.12.2010 and recommended for issue of Occupancy Certificate. The respondent Nos. 1 & 2 had also deposited Rs.1,59,211/- for having put in possession of 252 flats in Phase-1 without obtaining Occupancy Certificate and also a sum of Rs.5,54,800/- as penalty at the rate of Rs.50 per Sq. Mtrs. In respect of 11,096.00 Sq.Mtrs. out of the total of 33287.43 Sqm for construction the “O” block without obtaining the Commencement Certificate. The Respondent Nos. 1 & 2 have constructed 616 flats in “O” block. In respect of “O” Block Phase 1 consisting of 252 flats a total sum of Rs.7,14,011/- was deposited as penalty and partial occupancy certificate was granted in respect of 252 flats on 12.01.2011 and partial occupancy certificate granted was cancelled by the BDA as per the cancellation order dated:25.04.2011. After the cancellation of O/C the Respondents have not taken steps to comply with the conditions shown for cancellation of occupancy certificate.
2(b) The complainant further submitted that the Respondents have not fulfilled the statutory obligation such as construction and operationaliasing of the STP and obtaining BWSSB connection. It is needless to say that the apartment is in complete unless the opponents/respondents obtain the occupancy certificate from the concerned authority. It is deficiency of service on the part of the opponents/respondents in not providing occupancy certificate. The occupancy certificate is mandatory as per byelaw No.5.7 of building byelaws 2003 of BBMP and section 3(2)(i) of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sales, Management and Transfer Act, 1972. It is further submitted that at the time of offering the apartments for sale, several attractive advertisement were given in the local news papers and broachers promising with several facilities and amenities. As per the broaches opponents/respondents assured amenities like club house with Gymnasium, indoor games, steam rooms, Swimming Pool, Tennis Court, Children’s Park, Comfortable passengers Lifts, Emergency Generator for all common areas, Plug points for T.V.Adequate Potable water supply from borewells. The borewells dug are dried up, sufficient water is not supplied. The complainant members are purchasing water form water suppliers daily by incurring huge expenditure. Opponents have to make alternative arrangements for supply of sufficient potable water to each of the apartments of “o” Block. It is further submitted that the respondents have collected life time maintenance charges from the purchasers of the Flats and they are under the legal obligation to provide potable water supply and maintain the building including sanitation and security. They are under the obligation to provide electricity in the common areas meant for the common use of the residents. The respondents without any reason or rhyme have left the residents in lurch without bothering about the plight of the purchasers of Flats. Therefore, the petitioner society has been collecting from the owners, residents of flats the amount of Rs.5,00,000/- and more fro the said purpose every month.
2(c) The complainant further submitted that the opponents have not provided the above said amenities in spite of repeated requests by the members of the complainant Association. The opponents have mislead the purchasers by giving very attractive advertisements assuring to provide all essential amenities and facilities thus both the opponents have indulged in unfair trade practice. It is further submitted that the opponents have to allot the car parking slots to each of the apartment and notify the number distinctly as per the sanctioned plan. Further, it is the bounden duty of the opponents to register the Karnataka Owners Association as per Section 10 of Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972. The drainage pipes and water pipes used are sub standard, there is leakage of water from the pipes, the opponents are required to replace drainage pipes and water pipes. Within a short period of the construction of apartments there started seepage in the walls of the apartments. Opponents have to take steps to rectify and set right the seepage in the walls. The northern portion of the storm water drain around the building is collapsed resulting in percolation of water in the basement area causing damage to the entire building and pillars which is far more dangers risking the life of the inhabitants. It is further submitted that the petitioner society has been requesting the Respondent Nos. 1 & 2 repeatedly to pursue the matter relating to Occupancy Certificate from the Bengaluru Development Authority. But the Respondents did not take up the matter seriously to obtain the occupancy certificate or even to get the partial occupancy certificate restored.
2(d) The complainant further submitted that in the Writ Petitioner No.31982/2013 field by opponents against BDA and others before the Hon’ble High Court at Page 18 to 20 of the Writ Petition, it is admitted that swimming pool and club house were constructed for the use of the residents of “O” block. It is stated that BDA dismantled the said club house and swimming pool on the ground that the construction of the same are in the civic amenity area. After demolition of the club house and swimming pool opponents have not taken steps to construct swimming pool and club house for the beneficial use and enjoyment of the owners of apartments of “O” block. It is submitted that in earlier complaint No.3070/2009 filed before the District Consumer Forum by Sri. S.Sridhar and complaint No.1186/2007 filed by Sri.Narayanan Sankaran opponents had under taken to provide all required amenities, accordingly the said complaints were allowed. Despite the orders in the said complaints Opponents failed to fulfill their obligations. It is further submitted that the Respondent Nos. 1 & 2 were under obligation to provide amenities like Two lifts were required to be installed in “O” Block and they have failed to install the lifts, STP is not provided as agreed, The car parking facility is not provided, Required number of transformers have not been provided, The occupancy Certificate has not been given and Clearance from the Fire Force and Emergency services has not been obtained etc., consequently the complainant society got issued a legal notice to the respondents calling upon them to provide absolutely essential services as agreed, but the Respondents have not replied nor complied with the demand made by the complainant society. Hence, the complaint.
3. In spite of service of notice the Opposite Parties appeared before this Commission through their Advocate. Opposite Party No.1 not filed the version. On perusal of the order sheet it is seen that on 17/01/2019 it was recorded that “Advocate for complainant present; Opposite Party Nos. 1 & 2 absent; no representation. 45 days are over. Hence, version of Opposite Parties are taken as not filed, posted for affidavit evidence of complainant by 24/04/2019. But on 22.01.2020 it was recorded in the order sheet that Opposite Party No.2 files version. On perusal of previous date order sheet it is seen that the Opposite Party No.2 has not filed any I.A. to set-aside the order dated:17/01/2019 and simply filed version on 22.01.2020 without IA. Hence, the version of Opposite Party No.2 is taken as not filed.
4. Complainant filed the affidavit evidence and marked the documents as Ex.C1 to C21. Complainant also filed written arguments and some citation and Karnataka RERA Authority Order Copy.
5. We have heard the arguments from complainant side.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complaint deserves to be allowed?
(2) What Order?
7. The findings to the above points are;
(2) As per final Order
Point Nos. (1) & (2):-
8. Perused the contents of the complaint, affidavit filed by the complainant and materials on record, we noticed that the complainant has produced the document No.1/Registration certificate of the Society registered on 07/04/2007 by the owners of “O” Block of Platinum City Welfare Association, Bangalore under Karnataka Societies Registration Act 1960 and document No.2/to “whom so ever it may concern” issued by the Residents of “O” Block Platinum city Welfare Association, Bangalore authorized Shri. Shashidharayya Mathad, Jt. Secretary of the Association to sing all documents pertaining to legal matters on behalf of ROOP Welfare Association for representing the association in High Court of Karnataka.
9. Perused the contents of the complaint, affidavit filed by the complainant and documents and photographs. It is seen that after several requests, the Opposite Party Nos. 1 & 2 have not provided the amenities such as providing of occupancy certificate, swimming pool, club house, car parking slots to each apartments, one more lift as per the plan sanctioned, replacement of drainage pipes and water pipes and to take steps to prevent seepage in the walls, supply of sufficient potable water, reconstruct the walls of the storm drain covering the northern portion of “O” Block apartments, monthly electrical charges of common area, lifts and housekeeping and security charges as per the sale deed to the complainant’s Society. Hence, in our opinion it amounts to deficiency of service on the part of Opposite Party Nos. 1 & 2. Moreover, the Opposite Party Nos.1 & 2 have not filed objection to the complainant and not filed evidence affidavit and argued the matter on merits. Means, all the allegations made by the complainant is admitted by the Opposite Parties. Without objection and evidence affidavit, there is no weightage to the contention of Opposite Party No.2. The Opposite Parties are failed to perform their part of obligations as stipulated under the provisions though complainant’s Association have repeatedly requested the Opposite Parties to provided the amenities such as providing of occupancy certificate, swimming pool, club house, car parking slots to each apartments, one more lift as per the plan sanctioned, replacement of drainage pipes and water pipes and to take steps to prevent seepage in the walls, supply of sufficient potable water, reconstruct the walls of the storm drain covering the northern portion of “O” Block apartments, monthly electrical charges of common area, lifts and housekeeping and security charges as per the sale deed to the complainant’s Society. The Opposite Parties
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have not disproved this contention by filing any objection and affidavit evidence to show that Opposite Party Nos. 1 & 2 has complied all the conditions of the sale deed. Further, the contention has been taken by the complainants that occupancy certificate has not obtained so far. To disprove the same, the Opposite Parties have not produced a copy of occupancy certificate before us. Hence, the allegations made by the complainants are true and believable and complainant’s association has proved the deficiency of service on the part of Opposite Party Nos.1 & 2. Accordingly, the complaint is liable to be allowed. Hence, we proceed to pass the following:- ORDER: The complaint is allowed with cost of Rs.10,000/- The Opposite Party Nos. 1 & 2 is directed to provide occupancy certificate in respect of “O” Block of Platinum city to all the owners of apartments constructed in Sy.No. 47 & 48 of Peenya Village, HMT Main Road, Yeshwantpur, Bangalore The Opposite Party Nos. 1 & 2 are further directed to pay Rs.2,00,000/- to the complainant towards compensation for mental agony. The Opposite Party Nos. 1 & 2 are also directed to provide all other amenities as per sanctioned plan within 60 days from the date of this order. Failing which, the 9% interest shall be payable on Rs.2,00,000/- form the date of this complaint till realization. Send a copy of this order to both parties.