PASUMARTHI S.N.MURTHI Vs. NISCHINT CONSTRUCTIONS

JUDGEMENT

(1.) The first complainant is the owner of 500 square yards of site, together with an old house bearing Municipal No. 8 -2 -322, Road No. 7, Banjara Hills. So also, the second complainant is the owner of 300 square yards of site forming part of the same premises bearing No. 8 -2 -322. The first opposite party M/s. Nischint Constructions is a proprietary concern of Smt. Nivedita Reddy, represented by her husband and GPA Holder Sri Ch. Baba Prasada Reddy, while the second opposite party is herself and the third opposite party is her GPA Holder mentioned above.

(2.) While so, the complainants executed a Development Agreement on 15.5.1993 in favour of the first opposite party represented by the third opposite party for construction of multi -storeyed complex on the said 800 square yards, according to which, the complainants are entitled to get an extent of 3,700 sq. ft. of the built -up area and space for parking for two cars towards their share and 40 percent of the additional area in each additional floor, as and when sanctioned and permitted. The complainants selected plot Nos. 101 in the ground floor, and 301 in the second floor. The complex is named œAsh Wood Villa . The complainants, accordingly, executed the General Power of Attorney of even date appointing the third party as their Power of Attorney Holder. Consequently, the GPA Holder obtained the sanctioned plan for construction of the proposed ground, first and second floors of œAsh Wood Villa  by the Municipal Corporation of Hyderabad for a total built -up area of 11,850 sq. ft. Though, as per the sanctioned plan, 8 feet and 14 feet 9 inches are to be left as set backs on the northern and eastern sides respectively, but, the construction has been made upto the boundary wall of the first complainant and projecting 2 feet into the compound of the complainant, consequently, rain and drain water falls into the compound of the complainants causing nuisance to them. The said deviations are contrary to the sanctioned plan. Though, there is no provision for a cellar, it was raised, which is conveyed under a registered document to the brother of the third opposite party. The balconies shown in the sanctioned plan have been converted into rooms. The area earmarked for road widening has also been included thereby increased the built -up area approximately to 17,150 sq. ft. Further, without obtaining sanction at all a pent house was constructed over the second floor with a built -up area of 3,600 sq. ft. Of course, Clause 19 of the agreement provides for construction of a pent house on the third floor, below the water tank, to an extent of 1,800 sq. ft., and the builder alone is responsible to obtain necessary regularisation at his own cost, but, constructing double the area contravenes the said clause. A sale -deed, showing the plinth area of pent house as 2,630 sq. ft. was executed, though, the actual constructed area is 3,600 sq. ft. in favour of third parties. A notice dated 12.9.1994 was issued to the first complainant by the Municipal Corporation of Hyderabad stating that there are violations in construction on the ground and upper two floors and construction over all round open space required to be left open and also regarding the FSI. The third opposite party filed O.S. 1134/1994 in the name of the complainants against the MCH and obtained temporary injunction against demolition. As several false statements were made, in the plaint filed, the complainants had withdrawn the suit on 17.10.1995. The complainants cancelled the GPA given to the third opposite party by a notice dated 6.10.1995. The third opposite party gave a reply dated 13.10.1995 with contentious allegations. The opposite parties also sold the rest of the flats as well as the pent house. As the opposite parties had violated the conditions of the sanctioned plan, the MCH issued notices to the builders as well as other buyers for demolition of unauthorised constructions. Some of the suits were dismissed, while, the suits filed by three purchasers are still pending. The complainants have impleaded themselves, as parties in those suits.

(3.) The complainants filed W.P. 29188/1995 before the Honble High Court of A.P. seeking for a direction to the Government of Andhra Pradesh and Municipal Corporation of Hyderabad not to grant relaxation or regularisation of the illegal and unauthorised constructions made by them. The said writ petition was disposed on 21.8.1997 with a direction to the Government to consider the application of the purchaser Capt. Dinesh Mishra for relaxation of rules and for regularisation of deviations. The complainants also filed W.P. 8971/1999 for stay of regularisation of illegal constructions by the MCH and also to demolish the illegal constructions and obtained interim stay. The two flats which are meant for the complainants are left incomplete. They got the incomplete works approximately estimated by M/s. MBG Shastri & Associates, who are reputed Government Registered Valuers and Consulting Engineers. The opposite parties have abandoned the work and left the flats incomplete. Except for the outer cellar of the flats, major part of the works are left unfinished, although, they are bound to complete the works and hand -over the possession within 12 months. On 5.9.1995, there was a meeting of the first complainant and the third opposite party, whereunder, the latter agreed to complete the pending works in all respects and hand -over the flats 101 and 301 on or before 31.12.1995. The O.P. 3 also further agreed to provide all common facilities, such as, municipal water connection and permanent electricity supply etc. Therefore, the complainants issued a registered notice dated 23.5.1996, but, there was no response.