State Consumer Disputes Redressal Commission
Sharmistha Ghosh (Debnath) vs M/S. Suncon & Another on 24 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/682/2019 ( Date of Filing : 19 Sep 2019 ) (Arisen out of Order Dated 28/08/2019 in Case No. EA/159/2014 of District South 24 Parganas) 1. Sharmistha Ghosh (Debnath) W/o Dilip Debnath, C/o Gautam Basu, Flat no.6, 105, Jodhpur Park, P.S. Jadavpur, Kolkata - 700 068. ...........Appellant(s) Versus 1. M/s. Suncon & Another Rep. by its prop., Sri Shibabrata Deb, S/o Lt. Rakahal Chandra Deb, 33/22, Naktala Road, Kolkata -700 047, W.B. 2. Sri Shibabrata Deb S/o Lt. Rakahal Chandra Deb, 33/22, Naktala Road, Kolkata -700 047, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Sayantan Banerjee, Advocate For the Respondent: Mrs. Sarbari Dutta, Mrs. Sanhita Shaoo, Advocate Dated : 24 Oct 2019 Final Order / Judgement
The instant appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of complaint/D.Hr. Smt Sharmistha Ghosh (Debnath) to assail the order dated 28.08.2019 read with order dated 20.06.2019 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, 'Ld. District Forum') in EA/159/2014 arising out of Consumer complaint No. 416/2013.
Seen the materials on record. Heard Ms. Sarbari Dutta and Mr. Sayantan Banerjee, Ld. Advocates for the appellant and respondents respectively.
Having heard the Ld. Advocates appearing for the parties and on having a look to the materials on record it would reveal that the appellant herein being complainant lodge a consumer complaint under Section 12 of the Act before the Ld. District Forum being CC/416/2013 on 07.10.2013. The said complaint was allowed on contest with cost of Rs. 10,000/- by a judgment/final order dated 30.04.2014 with the following directions;
" The OPs are directed to deliver possession of the owner's allocation as per agreement dated 10.1.2003 to the complainant within 1 month from this day, failing which, the complainant will be at liberty to put the decree in execution in accordance with law.
The OPs are also directed to pay cost within 1 month from this day failing which the OPs shall pay penalty @Rs. 500/- per diem till payment."
Challenging the aforesaid order, respondent preferred an appeal in this commission being A/535/2014. The said appeal was allowed in part with a modification to the order to the extent that the OPs to hand over the owners allocation to the complainant within a period of 60 days from date of order and to pay compensation of a sum of Rs. 50,000/- and litigation costs of Rs. 10,000/-. To impeach the said order, the respondent preferred a Revision Petition being No. 2731/2018 in the Hon'ble National Commission and by an order dated 11.02.2019 the Hon'ble National Commission dismissed the Revision Petition being devoid of merit. Therefore, the order passed by the Ld. District Forum modified by this commission in the first appeal has attained finality.
Now, the question arises as to execution of the order.
During the pendency of execution proceedings, the judgment debtors preferred an appeal under Section 27A of the Act being FA No. A/272/2019 in this commission and the said appeal was disposed of by order No. 02 dated 11.04.2019 with a direction upon the parties, particularly the J.Dr. to hand over the owners allocation as per development agreement on 22.04.2014 at 2 PM and to appear before the Ld. District Forum on 24.04.2019.
The respondents/J.Drs. took a plea that the D.Hrs. did not cooperate with them in getting Completion Certificate and install Water Connection as the Power of Attorney is an unregistered one and unless a registered power of attorney is given to the developer the developer will not be able to bring completion certificate from the Kolkata Municipal Corporation. Be it mentioned here that the property is lying and situated at premises No. 127, Baroda Avenue, Kolkata- 700084, Dist- South 24 Parganas within the local limits of Ward No. 110 of Kolkata Municipal Corporation.
Form the order No. 28 dated 20.6.2019 it would reveal that the Ld. District Forum has observed that the car parking space has already been provided to the D.Hr. and this appears to be sufficient compliance of the agreement arrived at between the parties but what I find form the record is that the developer has made unauthorised construction in contravention to the sanctioned building plan obtained from the Kolkata Municipal Corporation. In this regard, a proceeding being D-Case No. 16-D/XI/0708 was initiated and hearing had taken place on 5.11.2008 and by an order the Special Officer (Building) of Kolkata Municipal Corporation has passed an order for demolition of one shop and one balcony in each floor of the building in question within 30 days from date of communication of the order in default the KMC authority shall demolish the same at the risk and cost of the P.R. In fact, Sri Santanu Das, Authorised Representative of the developer/promoter admitted that projection of cantilever at the rear side was made by him as pointed and shown in the demolition sketch and precise at allocation. He has further admitted that he made two shops in vacant space on the ground floor.
Ld. Advocate for the appellant has candidly submitted that challenging the order passed by the Special Officer (Building) of the Kolkata Municipal Corporation, the J.Dr/ Developer has preferred an appeal being BT Appeal No. 50/2019 under Section 400 (3) of KMC Act, 1980 and there is every possibility for regularisation of the said unauthorised construction. Therefore, in order to obtain Completion Certificate and other requirements to make the flat habitable, the impugned order being reasoned one should not be interfered with.
After giving due consideration to the submission made by the Ld. Advocates appearing for the parties I do not find any merit in the appeal. As a result, the appeal is liable to be dismissed.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs.
The impugned orders are hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 25.11.2019 to receive further order from the said authority.
The Registrar of this Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER