The suit has been going on in the court of the second sub-divisional Magistrate at 24 Paraganas for the past 15 years and the summation of the prosecution witness has ended only recently. While I had filed my written statement in 1983, I was not called for my evidence until last year but had to seek leave of absence from the court because I had been advised complete bed rest subsequent to a heart attack. I am 92 years old and the doctors consider me unfit to withstand the rigors of a court testimony and subsequent cross examination. What legal options are available to me in such a situation?
--M K Baneerji, Delhi

You can make an application to the court duly supported by a medical certificate from a well-qualified medical specialist who iscompletely conversant with your case, describing your physical and mental condition and expressing an opinion on your ability to withstand the rigours of a court trial at Calcutta. Based upon the expert opinion, you should seek the indulgence of the court for appointment of a local commissioner through the district magistrate under whose jurisdiction your city of residence rests, who could record your evidence at your residence and also the subsequent examination in chief and the cross examination that may ensue.

In your application you could also offer to pay the local commissioners cost as the court may direct. Alternatively, if the medical opinion stresses that due to old age you are totally unfit to depose before any court or a legal body then you may seek the permission of the court to be represented through a duly constituted Power of Attorney who should be conversant with the facts of the case. If the court agrees to such a representation and also agrees to examine such a person through a localcommissioner, then the evidence could be recorded without his having to visit Calcutta.

I purchased one of the five apartments developed by a reputed builder of Delhi on a 800 sq mt plot of land in a well-known South Delhi colony. The plan annexed to the agreement to sell shows two garages and demarcates eight open parking spaces in the common driveway-cum-forecourt of the building. Both the garages were sold, one to a ground floor owner and the other to a first floor owner. The second first floor owner was assigned one of the eight car parks as a reserved car park in the forecourt of the building as far back as 1980. In other words the remaining seven car parks could be used by any of the apartment owners. With the lapse of time the families grew and so did the number of vehicles in the building and at present one family who also owns a garage has three cars and other families have two cars each.One ground floor owner who does not own a garage has with the concurrence of the builder-developer built acovered car park shed at the back of his apartment but accessible from the front service road. While this arrangement was running quite smoothly until very recently, the first floor owner who has three cars, soon after the acquisition of his third car started insisting that no vehicles be parked in the demarcated car park in the open area in front of his garage as it interferes with his unrequited right ingress and egress. He further maintains that as different vehicles are used by different members of his family and parking in front of the garage would inconvenience the family member whose car is parked in the garage.The matter was taken up with the builder-developer who incidentally is also a close relation of the first floor owner in question, but the builder in complete violation of his earlier subsisting agreement with the respective flat buyers in which the seven car parks were shown as common areas decided to allocate three of these car parks to his relation and yet another two car parks to hisemployee who was sold the second floor apartment which is a third in size as compared to the remaining four apartments as reserved car parking spaces, thereby raising the number of reserved car parks to six. He further proceeded to allocate one each of the remaining two car parks to the ground floor owners and as a result thereof the remaining first floor owner who was originally assigned one reserved car park has been left to fend for himself and is now forced to park his second car on the footpath outside the building. Is the builders' action legally correct, fair and equitable? what residual rights did the builder have after he had sold all the apartments in the building even though yet to transfer the respective flats to the individual owners subsequent to the promulgation of the Delhi Apartments Ownership Act?
--S C Aggarwal, Delhi

Technically the builder-developer is still the owner of the apartments even though as per the terms of agreement to sell and upon receipt of full payment hehas handed over possession of the apartments to the respective buyers. He,therefore, continues to retain the legal right to deal with the property even though having sold and received his full payment he has lost all moral right to interfere in the affairs of the building particularly when it is tantamount to giving a go by to his earlier agreements.

The Delhi High Court in its landmark judgment in the case of Sequira Construction Vs the Legislature is already known with the passing of the Delhi Apartment Ownership Act the builder-developer should not alienate the common areas and be guided by Sagar Apartment Flat Owners Association, has already held that as the intent of the principles already enunciated in the Act.

The builder ought to have acted as an impartial mediator and if the car parking areas had to be allocated then they ought to have been done with the common consent of the apartment owners and in the proportion of their approximate holding of built-up areas. To allocate one garage and threeparking slots to a single party out of a total of seven unreserved parking slots whose holding of the built-up area is less than 25 per cent does seem odd and is liable to be challenged in a consumer disputes redressal forum. However, I would urge that you do seek legal advise and if the matter has to be taken up then it be done collectively by all the aggrieved parties rather than a single individual. It is always better to resolve the dispute amicably even if you have to give in a little.

G P Khungar is a real estate consultant and a former director (corporate affairs) of Ansals Ltd