Justice delayed in condo issues
“Justice Delayed Is Justice Denied”. So what? Seems to be the attitude of all the guardian angels of law. This includes all the Courts of law and other law enforcing authorities like the Consumer Affairs Authority, Condominium Management Authority (CMA), Colombo Municipal Council, Urban Development Authority and the like, who are supposed to dispense justice in their relevant fields.
This letter we will confine essentially to the delays experienced by us at the CMA.
File picture of a mixed development project
Two of us, who purchased an apartment each, at an apartment complex in Wellawate, were terribly dismayed, when we discovered that the building did not conform to the advertisement- the first source of information and the sales agreement entered into with the builder/developer. To our surprise, we discovered that part of the ground floor which was reserved for a car park was surreptitiously being converted to a restaurant to be leased out by the builder, to an ‘internationally reputed restaurant’.
We protested to the Lessee, the Developer, the Colombo Municipal Council and UDA about the unauthorised entry of the restaurant. But it was of no avail.
Subsequently, we reported the matter to the Consumer Affairs Authority and the CMA. The CMA under whose purview this matter comes was silent, they did not even acknowledge our letter, until the Consumer Affairs Authority wrote to them and drew their attention. In response to the Consumer Authority’s letter, the CMA initiated an inquiry in April 2005. All what they had to ascertain was whether the building had been built according to norms stipulated by the UDA and CMC including adequate parking facilities. The CMA had failed to look into these. Notwithstanding, the builder has got the approval without any difficulties.
Meanwhile, the legal team representing the developer at the CMA inquiry raised various objections and, referred it to the Court of Appeal twice, on technicalities of producing documents from the CMA files. Unfortunately the CMA did not have the capacity to defend the position taken up by them effectively to expedite the hearing. The Attorney General’s department which represented the CMA walked the ‘path of least resistance’, probably on the instruction of the CMA.
Unfortunately, the CMA acted like a pseudo ‘court of law’ instead of an inquiry panel, thus giving the opportunity for ‘legal luminaries’ to drag the proceedings indefinitely with the blessing of the CMA.
The appeal court proceedings went on for a couple of years. Finally the Court of Appeal on 13th De cember 2010, referred it back to the CMA to hold an inquiry according to law and directed them to conclude this inquiry “as early as possible” as already almost six years had elapsed from the time the CMA commenced the inquiry. ‘As early as possible’ we understand, would mean within two months from the date of this order was made. But this did not have any effect on the CMA.
Accordingly, we went back to the CMA to continue the inquiry from where we left. Ironically, the original building plan was missing from the builder, CMA, CMC and UDA. According to them the building plan was ‘lost’. Not misplaced. For some reason the CMA inquiry officer was soft pedalling the request to the builder and the other relevant parties to produce the original building plan. We were inclined to believe that the CMA was under some sort of pressure from some source.
At this stage, we informed the inquiry officer that no purpose will be served by continuing the inquiry without the production of the original building plan and therefore we have no other alternative but to withdraw from the inquiry.
In view of our stand, the CMA reluctantly ordered an inspection be carried out jointly by the builder, CMA, CAA, CMC and UDA in the presence of all concerned. However the CMA was vacillating in initiating the joint inspection.
Five abortive attempts were made to carry out the inspection. In view of the undue delay, we filed a Fundamental Rights Petition in November 2011. The petitioners appeared in person as in the case of CMA and Appeal Court.
Simultaneously, the CMA carried on with the inquiry with no end in sight. The CMA conducts the inquiry in Sinhala only, ignoring our request for translations as we are not familiar with the language. Incidentally the parties involved are all Tamils.
At the initial hearing of the FR petition, counsel who appeared for the CMC undertook to obtain the original Building Plan from the UDA and submit same. However when the proceedings resumed on 31st May2012, it was revealed that the original Building Plan was missing and therefore a joint inspection of the building in question was carried out by the CMA,CMC and UDA.
A report signed by the trio was submitted in open court on 31st.May 2012. Their conclusion was unanimous. In that, it was said that the ‘unauthorised’ restaurant has to be removed since the parking space for the houses in the building is not adequately available.
If not for the intervention of the Supreme Court, even the joint inspection would not have been carried out expeditiously.
Now, the case is pending both at the Supreme Court and the CMA. All indications are that the hearing will be concluded in the Supreme Court by December 2014.
However, it appears that the CMA would carry on regardless as the joint inspection report is being questioned by the builder’s legal team, despite the fact that their representatives were present at the joint inspection. This is baffling. The inquiry fixed for the 23rd. September 2013, with the concurrence of the builders’ lawyer was postponed to accommodate the request of the lawyer to 7th October 2013.
However this too was postponed indefinitely on some flimsy grounds, and we were informed over the phone.
It appears, the inquiry is being dragged on deliberately to avoid giving a verdict, which may not be in favour of the builder.
Almost nine years have elapsed from the commencement of the inquiry at the CMA, who is considered the guardian angel of the apartment owners. Eight of the apartment owners/occupiers passed away during this period without enjoying the fruits of our labour. So much had been spoken/ written by so many on so many occasions with regard to law delays, but, so little has been done to remedy it.
K. Balendra
Wellawatte