(Delivered on 29 /10/2021)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Petitioner/ O.P - The Forest Department Employees Co-op. Housing Society has preferred the present revision petition challenging the order dated 12/07/2021 passed by the learned District Consumer Commission , Nagpur in Consumer Complaint No. CC/166/2021 by which the application filed by the respondent /complainant came to be allowed and petitioner were directed to stop the construction work. (Petitioner hereinafter shall be referred as O.P. and respondent as complainant for the sake of convenience)
2. Short facts leading to the filing of the present petition may be narrated as under:-
Complainant – Mr. P.A. Mishrikotkar claims to be a resident of Flat No. A-202 in building No. B-5 and O.P. is Co-operative Housing Society formed for maintenance and up keep of building where the complainant/respondent was residing. Complainant /respondent has contended that he was practicing as an advocate and so was in need of peace and comfort for his work but the owner of Flat No. A-502 namely one Rajesh Lade without giving any prior notice started the renovation work and was carrying out structural changes under the garb of carrying out minor repairs. Complainant /respondent has taken a plea that on going construction and renovation work was causing great hardship, inconvenience and discomfort to the complainant /respondent who was practicing as advocate. Complainant /respondent has further contended that it was the duty of the petitioner/O.P- Society to see that no inconvenience or hardship is caused to the residents of the flats in the building No.-B-5. Complainant /respondent has further contended that the flats where he was residing and other flats were constructed without obtaining necessary Occupancy Certificate and were contrary to the Guidelines given by the Nagpur Municipal Corporation . The complainant therefore filed the Consumer Complaint against the O.P./petitioner alleging deficiency in service by the O.P./petitioner. 3. During the pendency of the complaint the present complainant also filed an application before the learned District Consumer Commission, Nagpur that since the owner of Flat No.A-502 on the 5th floor was carrying out construction which amounted to structural changes direction may be issued and the owner of the Flat No. A-502 be restrained from proceeding with the construction and carrying out the structural changes.
4. After hearing the complainant /respondent, the learned District Consumer Commission, Nagpur allowed the application and passed the order restraining the O.P./petitioner from carrying out the construction in Flat No. A-502 in building No. B-5. Aggrieved by the said order dated 12/07/2021 passed by the learned District Consumer Commission, Nagpur, the present O.P./ petitioner has come up in present revision petition.
5. After the revision petition came to be filed due notice was issued to the respondent /complainant –Mr. P.A. Mishrikotkar who has appeared in person.
6. I have heard Mr. Bhoot, learned advocate for the petitioner /O.P.- Forest Department Employees Co-op. Housing Society. At the outset Mr. Bhoot, learned advocate for the petitioner /O.P. has submitted before me that the learned District Consumer Commission, Nagpur has not taken into consideration various aspects and has passed an exparte order without hearing the present petitioner. Secondly, Mr. Bhoot, learned advocate for the petitioner /O.P. has submitted that the learned District Consumer Commission, Nagpur has not seen that there was no prima facie case or material to pass restraining order but despite this fact an exparte order has come to be passed by the learned District Consumer Commission on 12/07/2021. According to Mr. Bhoot, learned advocate for the petitioner /O.P. the learned District Consumer Commission, Nagpur had not taken into consideration also this fact that the owner of Flat No. A-502 on 5th Floor who was allegedly carrying out construction was not even made party to the present complaint and nor he came to be heard. On the basis of this submission Mr. Bhoot, learned advocate for the petitioner /O.P. has argued that the exparte order dated 12/07/2021 was not sustainable in law and so deserves to be set aside. During the course of argument Mr. Bhoot, learned advocate has also submitted that it was not proper or open to pass an exparte order against the present petitioner without giving due hearing to concerned parties. On this aspect the learned advocate for the petitioner /O.P. has also relied upon one judgment passed by the Hon’ble Supreme Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and other , reported in (1993) 3 Supreme Court Cases 161. I have gone through this judgment in which guidelines have been given regarding grant of exparte injunction and also the manner in which the Discretion or the Court has to be exercised. It was observed that before granting an exparte relief of temporary injunction Court must be satisfied that a strong prima facie case has been made out by the plaintiff including the question of irreparable loss and also balance of convenience. It is observed that power of grant of injunction is an extra ordinary power vested in the Court. I have gone through this judgment but I find that the learned District Consumer Commission, Nagpur has given elaborate reasons for passing the impugned order dated 12/07/2021.
7. Respondent /complainant -Mr. P.A. Mishrikotkar has appeared in person and has strongly rebutted all the contentions advanced by Mr. Bhoot, learned advocate for the petitioner /O.P. Initially it is submitted by the respondent/complainant that the petitioner/O.P. has suppressed material aspects from the Commission. The respondent /complainant has argued that the petitioner /O.P. has not brought on record and has also suppressed the fact that the impugned order dated 12/07/2021 was no longer in existence and in fact final order has come to be passed on his application on 17/09/2021 where in reference is also made to this order dated 12/07/2021 and the owner of the flat No. A-502 has also been made a party. On the basis of this fact the respondent /complainant has contended that since the order dated 12/07/2021 was no longer in existence, the present Revision Petition has become in-fructuous. In this regard the respondent/complainant has drawn my attention to the copy of an order dated 17/09/2021. The respondent /complainant has also argued before me that not only the owner of Flat No. A-502 on 5th floor was made a party to the present complaint but subsequently one Architect as a Commissioner was appointed to carry out inspection of Flat No. A-502 and to submit a report. Respondent has himself placed on record the copy of report of Commissioner/Architect and same is dated 11/10/2021. On the basis of this report of the Commissioner/Architect it is submitted by the respondent /complainant – Mr. P.A. Mishrikotkar that the owner of the Flat No. A-502 was not carrying out minor repairs as made out by him but in fact was making structural changes in his flat by making major alterations. I have gone through the report of the Commissioner/Architect which is also accompanied with copies of photographs. The report of the Commissioner/Architect shows that the major alterations were carried out in the balcony and Parapet wall has been removed and new window is placed at the end of the balcony. Bare perusal of the report of the Commissioner/Architect reveals that alterations carried out by the owner of the Flat No. A-502 were not in nature of minor repairs. It is submitted by the respondent /complainant – P.A. Mishrikotkar that the owner of Flat No. A-502 had no right or authority to carry out the major alterations contrary to the bye-laws of the housing society. According to the respondent /complainant the responsibility of carrying out repairs was not on the owner of the Flat but on the Society which was collecting the maintenance charges from the flat owners. In this regard, Mr. Bhoot, learned advocate for the petitioner /O.P. has drawn my attention specifically to the bye-laws and more particularly the clause No. 160(b) of the bye-laws which reads as under:
All the repairs, not covered by the bye-laws No. 160(a) shall be carried out by the members at their cost. The expenditure of the internal leakage due to toilet, sink etc should be borne by concerned flat holders, with the consent of the society.
I have gone through the provisions of the clause Nos. 160(a) as well as 160(b) of the bye-laws.
8. On the other hand, Mr. P.A. Mishrikotkar, respondent has drawn my attention to the Clause No. 47 of the bye-laws which says that no member shall without the previous permission of the Committee in writing make any additions or alterations in his Flat. Further , the respondent has also drawn my attention to the Clause No. 50 which says that no member shall do or suffer anything to be done in his flat which may cause nuisance, annoyance or inconvenience to any of the members of the society . It is thus clear that the owner of the Flat No. A-502 had no authority to carry out major alterations by causing any annoyance or inconvenience to other members including the complainant/respondent who was the owner of the Flat No. A-202.
9. I have also already referred to the Commissioner/Architect report which shows that the owner of the Flat No. A-502 was carrying out major alterations in his Flat but the question as to whether the construction carried out by the owner of the Flat No. A-502 amounted to material alteration can be determined only on its merits by the learned District Consumer Commission, Nagpur while deciding the Consumer Complaint on merits and cannot be subject matter of the present revision petition which has a restricted scope. I therefore refrain from making any further observations in this regard but it is very much clear from the submission that learned District Consumer Commission, Nagpur had passed interim order initially on 12/07/2021. Subsequently, the learned District Consumer Commission, Nagpur has not only added the owner of the flat No. A-502 as a party in the complaint but has also passed the final order on 17/09/2021.Respondent/complainant has also pointed out that in para No. 2 of this order dated 17/09/2021 specific reference is also made to the earlier order dated 12/07/2021. I do find considerable force in this contention of the respondent that since final order is already passed on same aspect the earlier order dated 12/07/2021 was no longer in existence and therefore, the Revision Petition would become in-fructuous. Respondent /complainant has also taken a plea that the petitioner /O.P. has deliberately suppressed these orders and developments while preferring the present revision petition and so revision petition deserves to be dismissed summarily. On this aspect Mr. P.A. Mishrikotkar, respondent has relied upon one judgment in the case of S.P.Chengalvaraya Naidu Vs. Jagannath, reported in AIR 1994 S.C 853.
10. Mr. Bhoot, learned advocate for the petitioner/O.P. has contended that the present respondent who was a resident and owner of the flat No. A-202 was himself not paying maintenance charges regularly and so he had no right to seek any relief from the petitioner –Society which was formed for welfare of all the members and flat owners of entire building. The respondent /complainant has strongly rebutted this contention and has pointed out that he had not only paid the maintenance charges regularly but has paid extra maintenance charges which were to be recovered from the present petitioner. On this aspect the respondent has placed on record copy of chart of payments made by way of maintenance charges. Further the respondent has also placed on record copies of receipts regarding payments. Respondent has also contended that he has already paid Rs.1,50,000/- as maintenance charges and Rs. 50,000/- on 15/07/2021 as advance maintenance but this fact was suppressed. Respondent has also drawn my attention to various receipts on record. Respondent has submitted that the petitioner- Society was not at all looking after the maintenance of entire building including the Flat No. A-202 of respondent and so respondent had also written several letters and complaints to the petitioner on 04/06/2021 and 16/06/2021. Copies of these letters are also placed on record. The petitioner has also filed on record one copy of letter from Mr. Rajesh Lade, owner of the flat No. A-502, regarding permission to carry out repairs. Accordingly, permission was also granted vide letter dated 25/05/2021 but condition was imposed that the owner of the flat No. 502 will not carry out structural changes. However, I feel that it is not necessary to go into these aspects since they are subject matter of the complaint filed by the respondent and here we are dealing with only legality of the order dated 12/07/2021 in revision.
11. Respondent - Mr. P.A. Mishrikotkar has also pointed out several other aspects including the fact that the possession was given to the flat owners without obtaining mandatory Occupancy Certificate. On this aspect the respondent has relied upon one judgment of Hon;ble National Commission in the case of Kamal Kishor Vs., Supertech Limited , reported in II(2017) CPJ 45 (NC). In this judgment it is observed that possession could not be delivered without Occupancy Certificate and maintenance charges were payable only from the date when the Occupancy Certificate was obtained. Further, the respondent has relied upon one judgment in the case of Mr. Vinubhai S. Vora Vs. Mahavirdham Co- op. Housing Society Ltd., delivered by the State Commission, Mumbai. The respondent has also relied upon one judgment of the State Commission in the case of Shri Gajanan Devidas Patil Vs. Shri Sunil Pralhad Shewale wherein it was observed that the District Consumer Commission is authorized to appoint the Architect as Commissioner to resolve the dispute. There can be no dispute regarding this preposition which is firmly laid down under the Consumer Protection Act,1986. Further the respondent has also relied upon one judgment of Hon’ble National Commission in the case of Ajmer Urban Cooperative Bank Vs. Manish Willams, reported in I (2018) CPJ 202 NC wherein it has been observed that the members of the society can raise the Consumer dispute against the society but in that case Hon;ble National Commission was dealing with the Co-operative Society and question was whether the consumer complaint was maintainable. However, there can be no dispute that in the present case the respondent was a Consumer being a owner of the Flat No. A-202 and petitioner- Society was formed for the welfare of all the flat owners who were members of the society.
12. During the course of argument respondent – P.A. Mishrikotkar has also contended that the petitioner- Society had also not complied with bye-laws and had not constituted the Grievance Redressal Committee where the grievances of the respondent could be addressed. Petitioner has not placed on record any documents so as to show that any Grievance Redressal Committee was formed as per the bye-laws.
13. In any case I must hold that looking to the fact that after the passing of the order dated 12/07/2021 further final order came to be passed and the owner of flat No. A-502 has come to be added as a party. I feel that the legality or propriety of the impugned order dated 12/07/2021 does not survive for consideration.
14. Apart from these facts even on merits as the learned District Consumer Commission, Nagpur has also given elaborate reasons while passing the order dated 12/07/2021 it cannot be said that the learned District Consumer Commission, Nagpur has not applied its mind to the material on record. In the light of the aforesaid discussion I am unable to accept the contentions advanced by Mr. Bhoot, learned advocate for the petitioner/O.P. that the impugned order was erroneous in nature. On the contrary I do not find any reasons to interfere with the said order. As such I must hold that the revision petition is devoid of any substance and hence I proceed to pass the following order.
ORDER
i. Revision Petition No. RP/21/9 is hereby dismissed.
ii. No order as to cost.
iii. Copy of order be furnished to both the parties free of cost.
