1. THIS appeal is directed against the Order dated 4.10.1990 passed by the District Forum, Bangalore in Complaint No. BDF:COM: 98/90-91 on its file. It arises in this way: The appellant had filed a complaint before the District Forum Bangalore, for the following reliefs:
(1) As I am one of the owners of the land and entitled to use common areas and facilities and limited common areas and facilities as per Sec. 6(1) of KAO Act, 1972, I should not be charged ground rent. At the same time I request you to declare that the Car Parking area in the basement can be used by all the 165 owners of the Apartments and not by a few owners who claim that they are the owners of the garages without the support of the legal document by way of Sale Deed. (2) To instruct the Association to charge/assess monthly maintenance charges as per law. (3) To immediately dissolve the existing illegal management of the Association as the Board of Managers have not been elected as per law and have not qualified to collect and spend a huge amount of 3.5 lakhs annually as maintenance charges as they are holding illegal offices. (4) To instruct the Association to comply with the Section 54, Chapter IX of KAO Rules for administration of the Association.
2. THE appellant has purchased an Apartment bearing No. 401, ''C'' Block in Sangeetha Apartment bearing No. 162/1 situated in 5th Cross, Malleswaram, Bangalore. All the owners of the Apartment have formed an Association. It is admitted that the said association has not been registered. THE complainant is not satisfied with the management and charges levied by the Association. Hence he filed the said complaint for the said reliefs.
The respondent raised a preliminary objection regarding the maintainability of the complaint contending that the Complainant is not a consumer as defined in the Consumer Protection Act, 1986 and that the reliefs claimed in the complaint cannot be granted by the District Forum. The respondent also contended that a suit in O. S. No. 1426/1990 filed by one of the Flat Owner Sri. K. Ramesh Shet on similar grounds is pending disposal before the Civil Court and so that complaint for the same relief is not maintainable. The District Forum held that the complainant is not a consumer as defined under the Act and that the reliefs claimed by the complainant cannot be granted by it under the Act and dismissed the complaint. Hence this Appeal by the complainant.
We heard the appellant and the learned counsel for the respondent. The complainant urged that as the Association is charging for the services contrary to Section 10 of the Karnataka Apartment Owners'' Act (for short the ''Act''), 1972, the association may be directed to collect charges as per law.
3. MR. Heddur Shetty, learned counsel for the respondent urged that the appellant being a Member of the Association is a part of the Association and so it cannot be said that he hired the services of the Association. He also urged that the reliefs claimed by the complainant in his complaint cannot be granted by the Commission.
It is not disputed before us that the Association of the Apartment Owners has not been registered and that the complainant is a member of the Respondent Association. It is also admitted by both sides that the expenses incurred for supplying water, providing security, sanitation, etc., are distributed equally among the Apartment Owners irrespective of the areas of the Apartment. The expenses incurred for the said services are not agreed upon as common expenses by the by-laws of the Association. Such expenses will not come under the definition of ''common expenses'' as defined under Section 3(g) of the KAO Act. Hence, we are of the view that Section 10 of the said Act is not applicable to such expenses. That apart, the complainant being a Member of the Association cannot be said to have hired the services of the Association. If that is so, he will not be a consumer as defined under Section 2(1)(d) of the Consumer Protection Act.
4. WE have already stated above, the reliefs claimed by the complainant in his complaint. WE are clearly of the view that the said reliefs cannot be granted under Section 14 of the Consumer Protection Act, 1986. It that is so, the Order of the District Forum is proper.
In the result, the appeal is dismissed. No costs. Appeal dismissed.
