Overview of Problems at Apeksha residency
We, the buyers of flats in Apeksha Residency had no say in the business of builder Mr.Ganesh Shetty. We have never asked the builder to go against the rules of MCC and laws of the country. We are not business partners of the builder. Delay in construction was due to his discretion of deploying his workforce to other project, thereby neglecting completion of Apeksha Residency.
HISTORY OF THE PROBLEMS:
There are 8 types of problems faced by the flat owners at Apeksha Residency. They are listed herewith.
RECONCILIATION EFFORTS before complaining to DKD CDR Forum.
The following reconciliation efforts are made by us and this is mentioned in our Affidavit to DKD CDR Forum.
On 20th April 2008, we made very serious efforts for reconciliation with Mr. Ganesh Shetty. He refused to take our phone calls. When we informed that Mr.Jayaram Shetty -who is well known to him and also well wisher of both the parties-is with us. He informed us through Mr.Sampath, he will meet us 1.30pm in his office. He did not turn up and again sent word that he would meet us at Apeksha at 8.30pm. Again he did not turn up and informed us through Mr. Sampath that he would meet Mr. Jayaram Shetty at his residence at Belthaangadi next day morning. Even than he did not turn up for the discussion with Mr Jayaram Shetty.
On 28th May 2008, we met Corporator Mr. NavinChandra. Mr.Sampath was called to meet him. Mr. Navin enquired about our Completion certificate, & DoD. As usual no commitment were given by Mr.Sampath.
There after, we made few attempts for reconciliation through Mt. Narayan Pai who is personal friend of Mr. Ganesh Shetty. He also did not succeed in arranging meeting with the builder Mr. Ganesh Shetty. After these attempts failed we approached the advocates for legal action.
DKD CDR Forum on 6-9-2009 before pronouncing the judgment asked both parties to come to a compromise before 12-10-2009. Builder's lawyer remained absent.
At present builder has appointed one labour family-staying in a room in basement and one worker from security agency is seen from 7pm to 7 am to switch on and switch off generator, to look after safety of his material and to attend to those looking for rental flat i.e builder's business. One sweeper during day time does not keep premises clean and neat because of no supervision.
HAND OVER TIME
Builder should initiate the flat owner's association immediately and hand over the management of the building, maintenance and day to day affairs. He should hand over all original
documents pertaining to the property,
Builder must provide copies of all the correspondence and disclose all relevant information to the association
Why we refused to pay monthly maintenance and electric bill?
During the month of February 2008, builder asked us to pay electricity charges and maintenance charges (with out proper basis) for last six months. We have to pay electricity charges based on domestic tariff and actual consumption once the DOD is prepared and registered and all other documents are handed over to us. We would like to draw your attention to the Karnataka Ownership flat act 1972 clause 6, which fixes responsibility on builder/ promoter for payment of outgoings (including electricity and maintenance) till the property is transferred to the flat owners association. As per this act we are not liable to pay electricity and maintenance charges and other outgoings till builder starts the flat owners association. Builder can not decide maintenance charges on adhoc basis with out consulting all the flat owners. This has to be decided by the association collectively. Therefore, Builder must expedite formation of flat owners association. We have clarified this through our letters dated 3-2-2008, we have clearly said that until the building is complete and all the documents are handed over to the owners, we will not be contributing to any expenses whatsoever towards the maintenance. However, we agree to pay arrears (with out interest & penalty) of electricity bill pertaining to individuals after the formation of flat owners association. Builder has employed his staff to look after his materials stocked in ground floor and basement.
ABOUT THE BUILDER
However, we feel the conduct of the builder in present case deserves to be noticed. Builder Mr.Ganesh Shetty is a Diploma holder in Civil Engineering (from Karnataka Polytechnics-Mangalore). He started his contracting business (Apoorva Associates) in 1985. He is aware of the MCC rules and obtained license (224:2004-05 dated 30-11-2004) and approved drawing for 36 flats. The builder attempted to put up additional Pent house (37th flat) on the terrace and Office/ flat (38th) at the car park thereby depriving 7 car-park spaces for flat owners. He retained 3.34% of undivided share of Land (registered on 5-12-2005) with him self illegally. He intended to build more than the number of flats mentioned in the license right from the beginning of the project. Probably, the builder is under the impression that he would be able to either escape the clutches of the law or twist the arm of the law by some manipulation. This impression must be proved wrong.
The summary of our 46 page case judgment should not ignores the root cause of the problem i.e. non-adherence of MCC's approved plan and License while constructing the building. For this reason the builder is not able to get door no, completion certificate etc and the builder has not provided the document called registered Deed of Declaration. Therefore, he has not submitted the building to Karnataka Apartment Ownership Act, 1972.
Builder should construct the building with out any deviation from the MCC approved plan and license and if any changes in the plan are required, then the approval for that should be obtained first and then proceed with the construction. The builder carried out the deviations first and then tries to get approval. This is not permitted in the law. We, the buyers of the flat, has never asked the builder to deviate from the approved plan.
It is also proved that the Builder has also indulged in unfair trade practice. We were able to prove our points by providing documentary and photographic evidences in the court.
We analyzed the DK-DCD-R FORUM's order dated 15-10-2009. Builder has flouted most of the laws of the MCC intentionally. Issues discussed there could be classified as following;
Other high lights of the judgment are;
After the judgment at DK-DCD-R Forum Mangalore, builder started dismantling the unfinished GF office with one or two labourers. Other works mentioned in the judgment was not even started / done till date . For DOD, he has not produced all the necessary documents to the lawyer. We were keeping a watch on the website http://kscdrc.kar.nic.in/ . Our builder has appealed in the higher court at KSCDR Commission Bangalore against the judgment we got this news on 16-11-2009.
At KS CDR Commision gave its judgment on 23 September 2010. Builder's appeal is dismissed.
This DKDCDRF judgment has been confirmed by the KS-CDRCommission at Bangalore as "JUST and PROPER"
Builder's appeal at National Consumer Disputes Redressal Commission has been dismissed at the admission stage and confirmed that "the compensation granted is proper and flat owners have been harassed for over number of years." Hence builder should accept the judgment gracefully or he must face the consequences for not adhering to the judgment. Builder never approached us for any concession before this date.
Arrest warrant was issued by DKDCDRF. Builder surrenders on the last day at DKDCDRF. Builder promises to work out compromises. He never contacted us with clean proposal. He was trying to push for us to agree to include PENT HOUSE and 4 extra car parks in the DoD. We are not ready to accept any illegal thing in our building for the DoD. Personal data of the flat buyers in the draft submitted by builders lawyer was not accurate. Compiling the flat owners details accurately is the responsibility of the Builder. Hence there was no progress on drafting of DoD.
Builder started external painting, completed half of the work and stopped without painting on the eastern and southern side of the building. During the ADALAT session on 23-02-2011, Hon. Judge asked the builder to complete the work as stated in the DKDCDRF judgment. Builder wanted two more months to complete the work. Hon. Judge asked to report progress after one month 23-03-2011. See the ADALAT report of 23-02-2011.
We met builder's advocate on 8th and 9th March 2011. This was the turnig point. Builder agreed for 36 car park for 36 flats also agreed not to include pent house in terrace. On 14th March 2011 the Deed of Declaration is signed by 38 flat owners for 52 grantors at Registrar's office in Mangalore. See photos of flat owners on the occassion out side registrar's office.
On 23rd March 2011, at DKDCDR Forum, Builder gave memo indicating that DOD is signed, Car park slots are marked, Interlock flooring at car park done, External Painting is 75% complete, Door number is given, etc and asked for two more months to complete. Forum will hear next on 23rd May 2011. If all pending work is not completed by then, day to day hearing of progress will be held till the conclusion of the case.
"If our co-operative efforts fail, who benefits?
Think it over, please.
Do not allow it to fail."
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