J.N. Deviah vs Shantiniketan Housing Foundation

THIS revision petition has been filed by the petitioners against the order dated 26.10.2009 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ''the State Commission'') in Appeal No. 1476/2009 - M/s. Shanthiniketan Housing Foundation Vs. Brig. (Retd.) J.N. Deviah & Anr. by which, while allowing appeal, order of District Forum in Execution Petition was set aside.

COMPLAINAN T /Petitioner filed complaint before District Forum with the prayer to direct OP to handover possession of apartment 104 of "Hiland Park" in accordance with law as per agreement after attending shortcomings and reimburse enhanced registration charges along with compensation. Learned District Forum vide order dated 17.5.2006 dismissed complaint. Appeal filed by complainant was allowed by learned State Commission vide order dated 26.3.2007 as under: 6. In view of the above said submissions made by complainant no. 1 and the Counsel for the OP, we pass the following order:

(1) The Complainants are directed to pay Rs. 43,000/ - to the OP within four weeks from today.

(2) The OP on receipt of the said amount to be paid by the Complainants is directed to execute absolute Sale Deed in favor of the Complainants and get the Sale Deed registered within two months from the date of receipt of the said amount.

(3) As per the terms of the Agreement, the Complainants are directed to bear Stamp Duty and other registration expenses.

(4) The OP is also directed to provide separate Electric Meter to the Flat as the OP has already received the amount by way of deposit for providing separate electric meter, within three months from today.

(5) If the OP is liable to comply with certain formalities under the Karnataka Apartment of Ownership Act and the Rules framed thereunder, the OP shall comply with the same.

(6) Parties to bear their own costs.

Complainant filed execution application before District Forum and learned District Forum vide order dated 30.3.2009 directed OP to execute sale deed in accordance with Form No. 5 of Karnataka Apartments Ownership Act, 1972. OP filed appeal before State Commission and learned State Commission vide impugned order allowed appeal and set aside order of District Forum against which, this revision petition has been filed.

HEARD petitioner in person and Counsel for the Respondent and perused record.

PETITIONER submitted that learned District Forum rightly directed OP to execute sale deed in accordance with Form No. 5 of Karnataka Apartments Ownership Act, 1972, but learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that as Karnataka Apartments Ownership Act, 1972 was not applicable to the apartment in question, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. Perusal of complaint reveals that nowhere complainant prayed that sale deed of flat is to be executed with Form No. 5 of Karnataka Apartments Ownership Act, 1972. Learned State Commission vide order dated 26.03.2007 directed OP as under: (5) If the OP is liable to comply with certain formalities under the Karnataka Apartment of Ownership Act and the Rules framed thereunder, the OP shall comply with the same.

THIS order was not challenged by complainant before this Commission and in such circumstances, this order attained finality. State Commission nowhere directed OP to execute sale deed in accordance with Form No. 5 of Karnataka Apartments Ownership Act, 1972 and in such circumstances, directions given by learned District forum vide order dated 30.3.2009 were not in accordance with order dated 26.03.2007 and in such circumstances, order passed by learned State Commission is in accordance with law.

SECTION 2 of Karnataka Apartments Ownership Act, 1972 runs as under: 2. Application of the Act. - This Act applies only to property the sole owner or all of the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration as hereinafter provided:

Provided that, no property shall be submitted to the provisions of this Act, unless it is mainly used, or proposed to be used for residential purposes".

Perusal of aforesaid section makes it clear that this Act is applicable only if owner or all owners of the property submit to the provisions of this Act by duly executing and registering a declaration as provided under the Act. Learned petitioner could not place any such declaration on record and in absence of such declaration Karnataka Apartments Ownership Act, 1972 is not applicable and learned State Commission rightly observed that this Act is not applicable to the apartment in question.

PERUSAL of impugned order further reveals that majority of purchasers have got sale deed executed and Apartment Ownership Association had also been constituted. In such circumstances, respondent cannot be directed to execute sale deed in favour of the petitioner under the Karnataka Apartments Ownership Act, 1972 and revision petition is liable to be dismissed.

CONSEQUENT LY , revision petition filed by the petitioner is dismissed with no order as to costs.