Sobha Hibiscus Condominium vs. Managing Director, M/s Sobha Developers Ltd & Anr., Civil Appeal No. 1118 of 2016- Febraury 14, 2020.
The Supreme Court bench comprising of Justice Mohan N Shanthanagoundar and Justice R. Subhash Reddy pronounced the following judgment.
Facts: The complainant is a statutory body under the provisions of Karnataka Apartment Ownership Act. It consists of members, who are the members of an apartment called “Shoba Hibiscus”. The appellant Condominium has come into existence pursuant to the decision made by the opposite party under the provisions of the 1972 act. When the appellant filed complaint claiming certain beliefs before the NCDRC, the same is resisted by the opposite party, by raising objection that they are not a ‘consumer’ within the meaning of this act and has no locus standi to file the complaint. The NCDRC after referring to the relevant provisions of the act, held that the complainant is not a ‘recognized consumer association’.
The learned counsel for appellants contended that any association registered under Companies Act, 1956 or any other law in the time being in force can maintain a complaint. It is said that the members of the condominium have purchased flats in the building and it is formed to address the grievances of the members before its tribunal and the authorities and therefore there is no reason to reject the complaint. The counsel relied upon the judgment of the NCDRC, New Delhi in the Consumer Case Moulivakkam Turst Heights Flat Affected Buyers Association etc. vs. M/s Prime Srishti Housing Pvt. Ltd. and 29 others.
The counsel for the respondents contended that the appellant cannot be said to be a voluntary consumer association as the provisions of the act. The appellant is a body which has come into existence as per the declaration made by the opposite party as required under the 1972 act. So, it cannot be said to be a voluntary association. The appellant does not come under the definition of consumer, the complaint filed is not maintainable and there are no grounds to interfere with the impugned order passed by the NCRDC.
The Court observed that a voluntary consumer association will be a body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law. The appellant association which consists of members of flat owners in a building, which has come into existence pursuant to a declaration which is required to be made compulsorily under the provisions of 1972 Act, cannot be said to be a voluntary association to maintain a complaint under the provisions of the Act.
The Court held that there is no merit in this appeal so as to interfere with the impugned order for the following reasons:
To maintain a complaint the complainant must come under the definition of “consumer” within Section 12(1) of the act. The appellant body has come into existence pursuant to the ‘declaration’ made by the opposite party. Section 3(j) of the act defines Declaration as the instrument by which the property is submitted to the provisions of this Act, as hereinafter provided, and such Declaration as from time to time may be lawfully amended. To register the building copies of floor plans, declarations and deed of apartment are required, which are placed on record. The bye-laws framed are also placed on record. So, it is found that the appellant has come into existence as the provisions of the act. It is clear from the act that it is an act to provide ownership of an individual apartment in a building and to make such apartment heritable and transferable so it cannot be called as a voluntary registered association for the purpose of filing a complaint. A voluntary association must be formed by a group of persons coming together and not under the influence of others.
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– Vydurya Selvi Baskaran
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