Encroachment of my legal right to use and enjoy in the GCAs
Querist :
Anonymous
(Querist) 04 June 2010
This query is : Open
I, Swarup Modak, an inhabitant of Bidisha Housing of Konnagar, Hooghly and a member of Bidisha Co-operative Housing Society Ltd. (in short the ‘Society’), Konnagar, Hooghly. The said membership is duly approved by the Co-operation Directorate, Hooghly Range (Former: Office of the Assistant Registrar of Co-operative Societies, Hooghly).
I purchased one residential flat of 477 sq. ft. at Bidisha Housing Project Ph-II (hereinafter referred to as the ‘Project’), Konnagar Hooghly which is promoted by the West Bengal Housing Board (hereinafter referred to as the ‘Board’), Kolkata.
I have purchased the aforesaid flat after being satisfied the free space of the General Common Areas of the Project. During purchase there was neither any Cycle/Two-Wheeler Stand nor any Flagpole base with sophisticated fence in any place of the General Common Areas of the Project.
An extract is given below from the Sale Deed which is made after purchase of the flat(s).
“The general common areas and facilities provided for the purchasers of flat in the estate mentioned in the Third Schedule hereto shall at all time be held by the purchaser and/or allottee member(s) along with other purchasers of flat in the said project and shall be used and enjoyed by them in common amongst themselves and neither the allottee/occupier nor any other purchaser of any flat in the aforesaid estate shall any time be entitled on any ground whatsoever to make partition or division thereof or to claim to have exclusive right in any manner whatsoever to any portion of such general common areas and facilities/amenities and that the purchaser along with the other purchasers of different flats in the aforesaid estate shall use the said general common areas and facilities/amenities for the purpose for which they are entitled to without hindering or encroaching upon the lawful rights of other purchasers and occupiers of other flats in the said Project.”
The Society has built the following in the free space of the General Common Areas.
1. Cycle/Two-Wheeler Stand – 1 no.
2. Flagpole base with sophisticated fence – 1 no.
The Society discussed regarding the Cycle Stand in several Annual General Body Meetings and the member(s) were agreed to violate the mandatory provision(s) of the Sale Deed whole-heartedly.
An extract from the minutes of 80th Board Meeting of the held on 30-08-2009 is given below:
“…iv) Intimation to W.B. Housing Board
- has already been completed”
The Society intimated to the Board prior to the construction of the Cycle/Two-Wheeler Stand.
The Board, being a party of the Sale Deed, a seller, has helped the Society to violate the mandatory provision(s) of the Sale Deed. The Board did not try to protect my right as I have paid money to them for the said flat as well as the General Common Areas in the Project.
The DRCS (Former ARCS) and the CI, Serampore has put their unauthorised interference by giving permission for construction Cycle Stand in the General Common Areas of the Project. Neither the DRCS nor the CI has spent any money for the said Flat as well as the General Common Areas of the Project nor the said property is their ancestral property.
On 29-12-2009 under ref. Memo No. 2153 M I – 3336 the ARCS issued a letter addressed to the Society as follows:
“...this office of the undersigned is not in a position to accord any sort of permission in this respect right now, because, out of 450 no of existing members of your society (having 540 no. of flats), the no of members likely to be benefitted from the proposed cycle stand is not duly furnished (more precisely, the capacity of the proposed cycle stand is not mentioned).
Now, you are hereby requested to need-ful for submission of this related documents in this regard for further course of action from this end.”
On 30-12-2009 the Society received letter from the ARCS and on the same day under ref. BIDI/Cycle stand in para 4 the Society replied to the ARCS through the CI as follows:
“ 4. Now about the capacity of the proposed stand we may say that the capacity of the stand depends upon the way the cycles are placed. The area of the proposed cycle stand is 110 ft x 8 ft. Our estimate is that around 200 cycles can be placed in the proposed cycle stand.”
Out of the above, the rest which the Secretary of the Society had written in his letter almost was not as per the requirement to the letter of the ARCS. It was a story which the Secretary of the Society manufactured just to influence the ARCS for obtaining sanction for the Cycle/Two-Wheeler Stand in their favour.
On 31-12-2009 under ref. Memo No. 179/09 the CI, Serampore Circle forwarded the letter of the Society along with favourable comments:
“...so that construction work for the cycle stand could be started as early as possible.”
Even she did not try to justify before writing to you whether the reply of the Secretary of Bidisha was in line of your letter.
On 04-01-2010 under ref. Memo No. 21 I – 3336 the ARCS issued a letter addressed to the secretary of the Society with an open permission for construction of cycle stand and the ARCS wrote as follows:
“...you may construct the Cycle Stand provided all the members (and their family) of your society can get the benefit of it irrespective of caste, creed, colour and sex for registering peace and tranquillity within our society.
At the same time, you are also requested to take necessary measures for construction of one or more no. of Cycle Stand for further requirement (if any) to meet up the need as well as demand of the members (General Body) over and above the existing capacity of the proposed Cycle Stand...”
The DRCS and the CI helped the Society directly to violate the mandatory provision(s) of the Sale Deed through applying their Official Power illegally and forcefully.
After getting success from violation of the mandatory provision(s) of the Sale Deed the Society has built one Flagpole base with sophisticated fence in the free space of the Project without any intimation to the concerned.
In the main Site Plan there is no any provision for any type Construction like Cycle/Two-Wheeler Stand and/or Flagpole Base in the free space of General Common Areas of the Project.
There as numbers of unsold flats in the Project which the Board will sale in coming days to his customers where an illegal Cycle Stand and/or a Flagpole base exist.
The aforesaid Cycle/Two-Wheeler Stand will create a serious social problem in the Project. The privacy of family members, especially lady members, of the unsold flats which are attached to Cycle/Two-Wheeler Stand will become completely destroyed. Round the clock all people will move besides their windows. It is impossible to give guarantee that no one will peep through the windows (bedroom/bathroom/kitchen/dining room) of the said flats. They should also have right to use and enjoy the sufficient free space besides their windows like other allottee member(s).
In the Sale Deed the Purchaser is the Society and I am a confirming party.
How should I be able to recover the free space?
