VEMPARALA SRIKANT V. M/S. INDIA BULLS CENTRUM OWNERS WELFARE. CO-OPERATIVE SOCIETY (By Sri Vakkanti Narasimha Rao, Honble President on behalf of the bench) This complaint is filed under Section 12 of Consumer Protection Act, 1986 by the Complainants through their GPA holder seeking direction against the Opp. Party with a prayer:- 1. To Collect Uniform Maintenance Charges from all Flats, instead of Per Square Foot and refund the excess Maintenance Charges Collected @ per Square Foot from the date of Association has taken over Maintenance. 2. To pay compensation to the complainant to a tune of Rs, 1,00,000/- with interest @ 18% p.a. for the mental agony and sufferings caused by the Opp. Party. 8. To award costs ofthis tigation or 4, To pass such other relief or relief as this Honble Forum deems fit and proper in the interest of justice and in the cir- cumstances of the present complaint. BRIEF FACTS OF THE COMPLAINT:- The 2nd complainant is the wife of the 1st complainant and both of them are residing in U S A and they are being represented by their @ P A Holder Sri VB Krishna Murthy who is the father of the 1st complainant and Father-in-Law of the 2nd complainant. The 1st and 2nd complainants are the owners of Flat No. 207, C Block and the parents of the 1st complainant are staying in the said flat. The complainants father states that they are the members of M/s. Incia Bull Centrum Owners Welfare Co-opera- tive Society by virtue of they being owners of Flat No. 207 in C Block. The Society is newly formed and applied for reg- istration with the Registrar of Co-Operative Societies more than one year back and awaited for formal approval However, pending Registration the society has started functioning. A Committed has been elected in democratic Process in which the petitioners through @ P A also participated and elected and the Society has started functioning. ‘A Bank account has been opened and the Society has taken over the Maintenance from M/s. Store One India Pvt Ltd., a Wing of M/s. India Bulls Wholesale Services (Builder) and the Complainants have started paying monthly main- tenance charges to the newly elected Full-fedged Society. A Sale Agreement was signed with the Builders in the ini- tial stages of purchasing the Flat No. 207, C Block, ad measuring 3,270 Square Foot super area, Wherein one of the condition is monthly maintenance charges are payable @ per Square foot for one year as the Builder will be maintain- ing the flats and will hand over the Maintenance to the Society along with Corpus Fund after itis Formed. However, charging monthly Common Area Maintenance charges per Square Foot is against a decided Case Law: Venus Co- operative Society and another Vs. Dr. J:Y. Detwani and others, in the High Court of Bombay, W.P. No. 1948 of 1997 Judgment delivered by Honble R J Kocher. A Co-operative Court ruled that common maintenance charges shall be n flat wise basis and not on area basis which was up-held by the Maharastra State Co-operative Appellate Tribunal, land finally when the decision was challenged in Mumbai High Court, the same decision was again up-held. Now the Common Area Maintenance has been taken over by the Opp. Party and the complainants has been paying the monthly maintenance charges @ Per Square Foot basis to the Opp. Party under Protest, since October, 2018. In one of the General Body Meetings, held on 11th September, 2016, the GPA Holder of the complainants made an attempt to move resolution for charging maintenance charges uniformly instead of per Square foot (Area Wise). The said itemwas not included in the Agenda and not discussed as majority of the members are having less area flats, while 4 bed room flats with bigger area are less in number and such resolution will affect them financially. A Legal notice has been. issued on 19th November, 2016 requesting the General Secretary to resort to uniform monthly maintenance charges instead of resorting maintenance charges on Area basis, citing the Mumbai High Court Judgment. A reply dated: 1st December, 2016 was sent to the counsel for the GPA holder of the Complainants for which a Counter reply has been sent on 1st January, 2017 by the father of the 1st complainant who is the GPA of the complainants herein. The es- sence of the rejoinder is:- a. The Court cases where are not applicable to the present case have been wrongly quoted and wrongly interpreted by Association have been clarified and majority of members are objecting. b. There is no need to amend any Bye-Law as nowhere there is a mention in the Bye-Laws that the maintenance charges shall be based on area. The Secretary quoted that as per Bye-Law 15.3.2, itis square foot wise. However, Bye-Law 15.3.2 ‘The maintenance charges shall be payable even if an apartment is unoccupied or kept locked. Gross square foot area of the apartment irrespective of the floor will be basis for calculating monthly maintenance charges. This Bye-Law refers only about apartments which are un-occupied and not a general rule and there is no need to amend a Bye- Law. The Opp. Party Society represented by its Secretary a duly elected Body by its member viz:- Owners of the flats, collects the monthly maintenance charges from the members and arrange to provide necessary services to all its members through various service providers. In one word, itis a single point contact for several deficiencies by any service provider. The society is meant to provide services and they have erred on the wrong side in determining the method of collection of maintenance charges in lieu of uniform maintenance charges and thus there is deficiency of service. The GPA holder is the complainant being Law abiding citizen is paying the Maintenance Charges Under Protest without any ruffle. The complainant is assessing the damages caused by the Opp. Party towards mental ten- sion and sufferance to a tune of Rs. 1, 00,000/- (Rupees One Lakh only). A reference was made by the complainant to the Registrar, Co-Operative Societies seeking guidance under document No. 8 but there is no response. VERSION OF THE OPP. PARTY:- The complainants through their GPA holder who is the owners of the flat agreed to all the con- di '$ and signed the agreement duly accepting to purchase and possess a Fiat in a Gated Community as per agreed norms along with all other owners. The Agreement also covers the aspects of Maintenance of the Society with very specific clauses which are mentioned hereunder:- a. Section 4 (a): The facility to use & enjoy the common ser- vice amenities subject to rules & regulations as shall be framed by the Promoter and Purchaser shall abide by the same. b. Page No. 14 Section r): That the purchaser shall be liable to pay PROPORTIONATE electricity charges, wa- ter charges, security charges, maintenance and oil charges or fuel charges for operational gen sets, salaries and ‘wages for the staff or the security staff, lf man, ext for common purpose. c, Page No, 32 again at (IV) The purchaser shall pay to the promoter such proportionate share of all outgoings necessary to the management, administration and Maintenance of the said land and project as a whole. Accordingly, right from the beginning the complainant and all others are paying maintenance charges proportionately as per the Flat Area that includes common area as owned. Now the complainant without having any other option to deny the same on its face value is coming with funny and ir- relevant arguments that agreement is for temporary period and the construction is illegal and the agreement is ques-tlonable, The complainant has also gone to the extent of defining the meaning of the word Proportionats in the agree- ment as uniform to suit to his demands when it refer Oxford Dictionary it is clear to understand its meaning: a Proportion: Relative size or amount b. Proportional / Proportionate: Corresponding in size or amount to something ‘else. The complainant tries to twist and turn the issue in a litigant manner wherein he finds no other legal backing to ‘escape from legally binding Agreement conditions. Even if the petitioner may question the Agreement of sale but what will be his contention on the conditions mentioned in the Registered Sale Deed? His entire ownership and thereby his all other claims are based on this document. In the sale deed clause 10 clearly spells as hereunder:- a, ‘The vendee shall be entitled to use along with other owners of Apartments all the common amentias and facilities pro- vided on payment of such sums as may be prescribed from time to time by the Vendor and / or the Agency appointed by the Vendor or Association of the apartment owners: hereafter referred to as the Association. The A.P. Apartments Promotion Act, 1987 which is umbrella Act, unless other modified, to refer to the statutory provisions regarding the issues of ownership and maintenance of Apartments for which the relevant Provisions are being repro- duced hereunder:- a. Section 3 (¢) states that Common expenses means: All sums lawfully assigned against the ‘apartment owners by the association, Expenses of Administration, maintenance, repairs, replacements of Common ‘Areas and facilities. b. Section 9: Common Areas and Facilities c. 9 (1) Each Apartment owners is entitled to Percentage of undivided interest in the common area, facilities expressed in the declaration and computed in the value of the apartment. d. 9 (2) The percentage of undivided interest in the common area and facilities shall not be separated from the apartment to which it appertains. e, Section 12: Common Expenses shall be charged to the apart- ment owners as per their percentage of undivided interest in common areas and facilities. Percentage of common Undivided share (Land portion and built up Portion as Super Area) is not same for all the flats and having bigger flat they are given bigger share and same is factored in capital value also. Hence as per the law, the common expenses shall be borne proportionate to the ownership of Common areas as defined in the Act. This is crystal clear. Hence the ‘demand of the petitioner is against to the law of land. The Act also stipulates following conditions: a. Section 31:~ All ‘apartment owners, tenants, shall be subject to provisions of this Act, Declarations, and Bye-Laws of the Association ‘owners. b. Section 31 (2) : All agreements, Decisions Lawfully made by the association in accordance with the voting percentage or bye laws shall be deemed to be binding on all the apartment owners. Hence the petitioner shall oblige ‘he provisions of Act and also the Bye Laws of the association which clearly mention about the method of collection of Maintenance charges to be collected on Gross area of the flat is considered for arriving maintenance charges. The petitioner is unnecessarily creating misinterpretations on every aspect instead of understanding the spirit and es- ‘sence of the provisions of Law and Bye-Law. All the owners are paying maintenance charges peacefully for the last nearly 2.5 years or so and the petitioners only causing disharmony in the society for their personnel benefit since they are bigger size flat owners. Relying on very specific Judgments of Supreme Court, the Forum may be pleased to dis- miss the complaint of the complainant. Evidence Affidavit of the complainants is filed through their GPA holder Sri V.B. Krishna Murthy and Ex. 41 to Ex. A-14 marked on their behalf. Evidence Aftidavit of the Opp. Party fled through its General Secretary and marked Ex. B.1 to Ex. 8.13 on its behalf. Written Arguments of both the parties filed. HeardArguments. Relying the material available on record the point for consideration is 1. Whether any deficiency is there in collecting maintenance as per Square Foot basis on the Part of the opp. party? 2. Whether the complainant s entitled for relief sought under the complaint? 3. To what reliet? Point No. 1 and 2: It is not in dispute that the Complainants are the members of M/s. India Bull ‘Centrum Owners Welfare Co-operative Society by virtue of they being owners of Flat No. 207 in C Block under Ex. AT to Ex. AS. The Society is newly formed and applied for registration with the Registrar of Co-Operative Societies under Ex B.5 more than one year back and awaited for formal approval. However, pending Registration the society has started functioning. A Committee has been elected in democratic Process in which the petitioners through GPA also participated and elected and the Society has started functioning. A Bank account has been opened and the Society has taken over the Maintenance from M/s. Store One India Pvt. Ltd., a Wing of M/s. India Bulls Wholesale Services (Builder) and the Complainants have started paying monthly maintenance charges to the newly elected Full- fledged Society. A Sale Agreement was signed with the Builders under Ex, A.1 in the initial stages of ourchasing the Flat No. 207, C Block, admeasuring 3,270 Square Foot super area, Wherein one of the condition is monthly maintenance charges are payable @ per Square foot for one year as the Builder will be maintaining the fiats and will hand over the Maintenance to the Society along with Corpus Fund after itis Formed. It is also not in dispute that now the Common ‘Area Maintenance has been taken over by the Opp. Party and the complainants has been paying the monthly mainte- nance charges @ Per Square Foot basis to the Opp. Party under Protest, since October, 2016. In one of the General Body Meetings, held on 11th September, 2016, the GPA Holder of the complainants made an attempt to move reso- lution for charging maintenance charges uniformly instead of per Square foot (Area Wise). The said item was not in- cluded in the Agenda and not discussed as majority of the members are having less area flats, while 4 bed room flats, with bigger area are less in number and such resolution will affect them financially. A Legal notice under Ex. A5 has been issued on 18th November, 2016 requesting the General Secretary to resort to uniform monthly maintenance charges instead of resorting maintenance charges on Square Foot basis, citing the Mumbai High Court Judgment marked as in Ex. Aad. A reply dated: 1st December, 2016 under Ex. A6 was sent to the counsel for the GPA holder of the Complainants for which a Counter reply has been sent on 81st January, 2017 under Ex. A7 by the father of the 1st ‘complainant who is the GPA of the complainants herein. The essence of the rejoinder is:- a. The Court cases where are not applicable to the present case have been wrongly quoted and wrongly interpreted by Association have been clarified. d. There is no need to amend any Bye-Law as nowhere there is a mention in the Bye-Laws that the mainte- nance charges shall be based on area of the flat. The Secretary quoted that as per Bye-Law 15.3.2, itis square foot ‘wise. However, Bye-Law 15.3.2 The maintenance charges shall be payable even if an apartment is unoccupied or kept locked. Gross square foot area of the apartment irrespective of the floor will be basis for calculating monthly maintenance charges. This Bye-Law refers only about apartments which are un-occupied and not a general rule and there is no need to amend a Bye-Law. The contentions of the opp. party is that the purchaser shall be liable to payPROPORTIONATE electricity charges, water charges, security charges, maintenance and oil charges or fuel charges for operational gen sets, salaries and wages for the staff or the security staff, lift man, ext for common purpose. The purchaser shall pay to the promoter such proportionate share of all outgoings necessary to the management, ad- ministration and Maintenance of the said land and project as a whole. Accordingly, right from the beginning the com- plainant and all others are paying maintenance charges proportionately as per the Flat Area that includes common area as owned. Now the maintenance alleged to be claimed and decided by the opp. party is for not of management, administration and Maintenance of the said land and project as a whole. itis charged on flat fee basis which shall not be against the principles of natural justice. According to the Legislation approved by the Commissioner for Cooperation and Registrar, Cooperative Societies, the regular society charges are to be apportioned in the following manner: 1, Expenses on Repairs and Maintenance of Building. At the rate fixed by the general body from time to time subject to minimum of 0.75 percent per annum of the construction of each flat for meeting expenses on Normal Recurring Repairs. This implies this can be charged on a Square Foot basis which is indirect indication of the construction of the flat. 2. Service Charges (House Keeping, Security, Common area Electricity equipments) equally divided by number of flats. This implies this can be charged on flat fee basis. Where each fiat pays the same amount irrespective of its area. 8. Expenses on Repairs and Maintenance of the Lif, incluging charges for running the lift and equally by all Members irrespective of fact. Whether they use the lft or not this is clearly charge on fiat fee basis. 4, Sinking Funds: at the rate decided by general body. Subject to minimum 0.25 percent per annum of the construc- tion costs of each flat. This again implies a Square Feet based fee as in item No. 1. While many societies bill their members exactiy by the book, many others combine the charges into two major components. a. Square Feet based charges item No. 1 and 4 above expenses in repairs and maintenance of building and sinking funds. b. Equal charges item No. 2 and 3 above service charges and expenses on repairs and maintenance of lif. The Builder has already charged (0.75 % + 0.25%) = 1% Corpus Fund per Square Feet which covers (a) above and the fund will be given to the Society by the Builder M/s. India Bulls Centrum after the Registration. The same was not disputed by the Opp. Party. Moreover the Opp. Party stated that the complainant had executed to the Builder as in Ex. 83, giving undertak- ing that the complainant also liable to pay monthly maintenance charges for services provided by the company or its nominated maintenance agency for the up keeping of common areas and facilities, which is calculated @ of Rs. 2.5/- per Sq. ft, of Super Area (1485 sq.) of the premises amount to Rs. 3663/. The said Ex. BS also not signed by the person who alleged to bs accepted and confirmed the sams. In view Judgment of Mumbai High Court it cannot be said that the big flat holders are getting higher or more services to make them liable to pay more on the basis of the area of the flat. Aforesaid services are enjoyed by all the members equally and therefore there was no reason for thesociety to have made the large flat holders to pay more on the basis of the area of flat. There is absolutely no rational or any reason to require the large flat owners to pay more for the aforesaid service charges. The Supremacy of the General Body cannot be disputed by even the Supreme. The General body has to be reasonable and has to pass ra- tional resolution considering all the facts and circumstance of the mater. The General Body cannot pass arbitrary and unreasonable resolutions merely because itis supreme and it has a large majority in favour of one of the issues on the Agenda. Itis not the case of the society that the virtue of the large size of the fiats, the fiat holders gets more or higher ‘security or more common road or common passage light than that of the small flat holders. There is absolutely no ra- tional basis for the society to charge for the aforesaid services on the basis of the size of the flats. The Opp. parties relied upon the citation of Apex Court but for the facts are of different with the facts of the case on hand. Hence we are not taken into consideration. Viewing the above observations we are under the considered view that the acts of the Opp. Party Society is un-fair upon its part in not considering the complaint of the complainant made in one of the General Body Meetings, held on 11th September, 2016, for charging maintenance charges uniformly instead of per ‘Square foot (Area Wise) basis and the said item was not included in the Agenda and not discussed as majority of the members are having less area flats, while 4 bed room flats with bigger area are less in number and such resolution will affect them financially and it is purely against the principles of natural justice and equitable law. The Society is not providing more services for having more Flat Area to the complainant for which it can be treated as flat fee basis. With the above observations we are under the considered view that there is a deficiency of service upon the part of opp. party for which they are liable for their defi- cient acts. Accordingly we answered these points in favor of the complainant. Point No. 3:- In the resuit the complaint of the complainant is allowed in part directing the Opp. Party., 1. To Collect Uniform Maintenance Charges from all Flats, instead of Per Square Foot and refund the excess Maintenance Charges Collected @ per Square Foot to the complainant from the date of Association has taken over Maintenance i.e. w.ef. October, 2016 til its compliance. 2. To pay compensation to the complainant to a tune of Rs. 15,000/- for the mental agony and sufferings caused by the Opp, Party. 3. To pay costs of Rs. 5,000/- 4, Time for compliance 30 days from the date of receipt of this order. Rest of the claim of the complainant is dis- missed. Typed by me, uploaded into my Pen- drive, handed over the same to my Stenographer, prepared the order by her and on its corrections, we pronounced the judgment on this day of October, 2018. MEMBER PRESIDENT APPENDIX OF EVIDENCE Witnesses examined for complainant Witnesses examined for Opp.party Sri V.B. Krishna Murthy (PW1) Sri K. Srinivas ( RW-1) Exhibits marked on behalf of the Complainant:- Ex.A1 is Sale Deed, dated 13- (08-2015 Ex.A2 is G.P.A to V.B Krishna Murthy Ex.A3 is Special Power of Attorney to V.B.Krishna Murthy Bx.A4 is‘Mumbai Judgment copy Maintenance Charges by Sri.R.J.Kochar.J. Ex.A5 is Legal Notice, dated 19-11-2016 Ex.A6 is Reply Notice, dated 01-12-2016 Ex.A7 is Counter Reply Notice, dated 31-01-2017 Ex.AB is Letter to Registrar, dated 03-12-2015 Ex.A9 is Passport, Visa, Adhar Card and PAN photo copy of Sri. V.B.Krishna Murthy Ex.A10 is Receipts of India Bulls Centrum Flat Owners Welfare Co-operative Society Ex At is counter to affidavit by Secretary EX.AI2 is J.N.Chaudhary Sothers Vs State of Haryana Ex.A13 is G.O.No.42, dated 02-02-2018 Ex.Al4 is Bye- Laws of Co-Operative Societies Exhibits marked on behalf of the Opposite parties:- Ex.B1 is additional written reply & Counter arguments On behalf of Respondents Ex.B2 is Sale Deed, dated 04-07-2014 Ex.B3 is Possession Letter, dated 01-10-2014 Ex.B4 is Application Form, dated 17-11-2018 Ex.BS is Bye-Laws India Bulls Centrum Ex.B6 is Statement of Objects and Reasons ExB7 is G.O.Ms.No.1941, Food and Agriculture Department Ex.88 is J.N.Chaudhary others Vs State of Haryana Ex.B9 is Delhi Co-operative Societies Act,2008 Ex.B10 is A.P. State Consumer Order Ex.B11 is Industan Times Ex.B12 is Complaint Case No.CC 167/2014 Ex.B12 is Letter, dated 13-01-2016 MEMBER PRESIDENT