The court clarified that surrounding open spaces associated with a residential building are common areas available for shared use among flat owners, overriding exclusive claims.

ORDER

1. Challenge in this Revision Petition, under Section 21 (b) of the Consumer Protection Act, 1986 (for short “the Act”), by the Petitioners/Complainants, is to the Common Order dated 20.03.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission, at Mumbai (for short “the State Commission”) in First Appeal No. A/10/720, A/10/77 and A/10/1040. By the Impugned Order, the State Commission while dismissing the Appeal No. 720/2010 filed by the Complainants has partly allowed the Appeal Nos. 779 and 1040 of 2010 filed by the Respondent Nos. 1 and 4 respectively.

2. Succinctly put, dispute prevailing between the parties in this case is with respect to use of substantial open space surrounding the Building in question. It is averred that the Petitioners/Complainants have been prevented from using and enjoying the aforesaid open space as the Respondent No. 1 has covered the open space by erecting iron grill.

3. Detailed factual matrix as penned in the Complaint is that the Respondent no 4, Shailesh Co-Operative Housing Society, is a Society registered under the provisions of Maharashtra Co-Operative Societies Act,1960 in the year 1969 (hereinafter referred to as the “Society”) and the Petitioners and Respondent No.1 are its Members. The Society is in possession of a piece of land situated at S.No. 39/2 + 40/2, Maharshi Karve Nagar, Pune. The said land was divided into sub-plots and one of the such plots bearing No. 29 admeasuring 338.63 sq. mtrs. was allotted to Respondent no.1, Mrs. Sarojini Gangadhar, on lease for 999 years. The Society also executed a registered Lease Deed in her favour, however, construction was not done by her on the said plot for a long period of time. Subsequently, a Resolution was passed by the Society on 09.11.1986 allowing the plot owners/its Members to construct multi-storied Building on the plots allotted to them. It was also decided by the Society that a Society within Society (to be called new Society) would be formed and each Flat Purchaser would pay ₹10,000/- to the Society for transferring the right, title and interest and as such all the Flat Purchaser would become nominal Members of the Society.

4. The Respondent No.1, owner of Plot No.29, entered into a Development Agreement with one, Late Vinayak Shridhar Deshpande on 29.07.1986 who in turn transferred his rights of development in favour of Respondent No.2 Partnership Firm, M/s Gajanan Construction in which the Respondent No.3 was a Partner. The construction of the Building was completed and the Completion Certificate was obtained on 26.06.1989. The Flat Nos. 1 & 2 at the Ground Floor were retained by the Respondent No.1 while the Flat Nos. 3, 4, 5 and 6 at Ist and 2^nd Floors were purchased by the Complainants/Petitioner herein by executing necessary registered Agreements under the provisions of Maharashtra Apartment Ownership Act 1970 (for short, the “ MAO Act 1970”). According to the Complainants, it was necessary for the Respondents to convey the said property by forming a new Society or Condominium as per the provisions of MAO Act 1970 for its maintenance, however, they failed to do so despite repeated requests. The Petitioners via legal notice also submitted their grievances, in response to which, Respondent no.1 has stated that it was the responsibility of Late Mr. Vinayak Shridhare Deshpande to convey the property, as the initial Agreement was executed by him. The Complainants again issued rejoinder on 03.02.2004 on which the Respondent No.1 refused to execute the Convey