State Consumer Disputes Redressal Commission
M/S. Asco Enterprises, Rep. By Its Sole ... vs Shyamalaya Apartment Owners ... on 15 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1202/2015 ( Date of Filing : 05 Nov 2015 ) (Arisen out of Order Dated 24/06/2015 in Case No. CC/487/2013 of District North 24 Parganas) 1. M/s. Asco Enterprises, Rep. by its sole proprietor namely Sri Madhusudhan Chakraborty. DC - 116, Narayantala (West), Deshbandhunagar, V.I.P. Road, P.S - Rajarhat, Kolkata - 700 059, Dist - North 24 Pgs. ...........Appellant(s) Versus 1. Shyamalaya Apartment Owners Association Rep. by its sole Secretary namely Smt. Reba Mukherjee 51, Vidyasagar Road, Subhasnagar, Dum Dum Cantonment, P.O - Rabindranagar, P.S - Dum Dum, Kolkata - 700 065, Dist - North 24 Pgs, West Bengal. 2. Sri Madhusudhan Chakraborty S/o, Sri Hari Ranjan Chakraborty, DC - 116, Narayantala (West), Deshbandhunagar, V.I.P. Road, P.S - Rajarhat, Kolkata - 700 059, Dist - North 24 Pgs. 3. Sri Gurudas Biswas S/o, Lt. Adhar Chandra Biswas, 51, Vidyasagar Road, Dum Dum Cantonment, P.O - Rabindra Nagar, P.S - Dum Dum, Kolkata - 700 065, Dist - North 24 Pgs, W.B. 4. Gopal Chandra Biswas S/o, Lt. Adhar Chandra Biswas, 51, Vidyasagar Road, Dum Dum Cantonment, P.O - Rabindra Nagar, P.S - Dum Dum, Kolkata - 700 065, Dist - North 24 Pgs, W.B. 5. Sri Manamatha Nath Mondal S/o, Lt. Aswini Kumar Mondal, 51, Vidyasagar Road, Dum Dum Cantonment, P.O - Rabindra Nagar, P.S - Dum Dum, Kolkata - 700 065, Dist - North 24 Pgs, W.B. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Maheshlal Sharma , Advocate For the Respondent: Rajesh Biswas, Advocate Dated : 15 Jun 2018 Final Order / Judgement
The instant appeal is under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of opposite party nos. 1 & 2 i.e. the Developer Firm and its sole proprietor to impeach the judgment/final order dated 24th June, 2015 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, 'Ld. District Forum') in Consumer Complaint No. 487 of 2013. By its impugned order, the Ld. District Forum allowed the complaint lodged by respondent no. 1 Association on contest against the appellants and ex-parte against respondent nos. 3 to 5/opposite party nos. 3 to 5 with the direction upon all the opposite parties jointly and severally to hand over the Completion Certificate to the complainant/respondent no. 1 within three months from date, to complete the incomplete construction as per Commissioner's report within three months from date of order and also directed the opposite parties to bear the expenses of the complainant which they spent for the emergency works for the individual work, compensation of Rs. 50,000/- for harassment and mental agony and Rs. 10,000/- as litigation cost and if the same is not paid within three months, the opposite parties shall pay Rs. 200/- per day as punitive damages.
The respondent no. 1 herein being complainant lodged the complaint before the Ld. District Forum asserting that the opposite party nos. 3 to 5/respondent nos. 3 to 5 were the owners of a land measuring about 3 cottahs 6 chittaks 12 sq. ft. lying and situated at Premises No. 51, Vidyasagar Road, Dum Dum Cantonment, P.O.-Rabindranagar, P.S.- Dum Dum, Kolkata - 700065, Dist.- North 24 Parganas. On 12.08.2015 the opposite party nos. 3 to 5 had entered into a development agreement with the opposite party no. 1 a proprietorship concern of which opposite party nos. 2 is the sole proprietor for development of the said property. The opposite party nos. 3 to 5 had also executed one registered Power of Attorney in favour of the opposite party no. 2. The opposite party nos. 1 & 2 have started construction on the basis of sanctioned plan approved by the competent authority and after partial construction handed over the owner's allocation of the said multi-storied building. The remaining flats of the said multi-storied building allotted to developer's allocation have been sold by opposite party nos. 1 & 2 to all the intending purchasers showing the building and its facilities as per sanctioned building plan dated 18.06.2003. Then all the buyers had paid their respective consideration money in favour of opposite party nos. 1 & 2 and accordingly Deed of Conveyance had been registered to that effect. The complainant has alleged that there were several incomplete and unfinished works have been left by opposite party nos. 1 & 2 and in order to make the respective flats habitable they invested a huge amount of Rs. 12,15,225/-. The complainant has alleged that the opposite parties are contractually obliged to provide all sorts of common services and to complete all incomplete constructional works over the property as agreed by the opposite parties as mentioned in the agreement for sale and Deed of Conveyance but the opposite parties neglected and failed to provide all sorts of common services and to complete the incomplete constructional work over the said property as per terms of the agreement for sale. Hence, the respondent no. 1 Association approached the Ld. District Forum with prayer for several reliefs, viz.- (a) an order directing all the opposite parties jointly and severally to bear/pay the enhanced cost of registration as to be determined; (b) an order directing all the opposite parties jointly and severally to pay Rs. 7,00,000/- as compensation for harassment and mental agony; (c) an order directing all the opposite parties jointly and severally to obtain Completion Certificate with regard to the multi-storied building; (d) an order directing the opposite parties to pay the entire tax and rent till the date of receiving of the Completion Certificate from the local authority and (e) all costs of the proceedings.
The respondent no. 2 being opposite party no. 2 i.e. the proprietor of M/s. ASCO Enterprises/Developer Firm by filing a written version resisted the allegations made by the complainant and prays for dismissal of the complaint.
After assessing the materials on record, the Ld. District Forum by the impugned judgment/final order allowed the complaint with directions upon the opposite parties as indicated above. Challenging the said order, the developer firm has come up in this Commission with the instant appeal.
Undisputedly, the respondent nos. 3 to 5 the owners of a piece of land measuring about 3 cottahs 6 chittaks 12 sq. ft. more or less lying and situated at Premises No. 51, Vidyasagar Road, P.O.-Rabindranagar, P.S.- Dum Dum, Kolkata - 700065, Dist.- North 24 Parganas. On 12.08.2005 the landowners had entered into an agreement with the developer firm for raising a multi-storied building over the said property. It is also not in dispute that on 06.08.2005 the landowners had executed one registered Power of Attorney in favour of the developer authorising them to deal with developer's allocation. Pursuant to the development agreement and the Power of Attorney executed by the landowners, the developer had handed over the developer's allocation. It is evident that there are 21 flats in the building and the developer had entered into an agreement for sale with the intending buyers and ultimately sold the flats by executing Deed of Conveyance but without completion of the building. In fact, the developer could not yet obtained the Completion Certificate from the local authority.
The respondent no. 1/applicant is a registered Association of the flat owners under the name and style 'Shyamalaya Apartment Owner's Association' represented by its Secretary namely Smt Reba Mukherjee. The flat owner's Association have categorically stated that the developer did not fulfil its promise by finishing the unfinished work of the building as per sanctioned building plan. To prove their allegations, an Engineer Commissioner was appointed. After inspection, the Ld. Engineer Commissioner has submitted his report. The said report speaks -
"Plastering work of the common stair was in complete condition from top to bottom. Moreover surrounding of common area of the building was uncovered mainly front portion was not walled up but vacant up but vacant area in the building was being filled up with heap of garbage along with a privy without modern arrangement of S-Tank, creating bad smell surrounding the area.
The front portion in between two flats was still incomplete having a hole for future lift (no effort of completion).
The essential roof treatment for longevity of roof was not yet completed, moreover good drainage system for quick removal or rainy water was absent in the building.
Present S-Tank of the building was too small in comprising with the five storied building having 21 flats especially depth of the tank was too short.
According to the agreement the electric wiring was still opened instead of conceal system.
The OPs of the suit failed to submit fire protection certificate of the Municipality to the flat owners.
The OPs were less interested to feel the facilities and difficulties of the flat owners even they gave shelter at the ground floor to two political party officers and to a club without following plan.
Not only that some stall holder were given shelter surrounding the ground floor of the building in place of garages in the sanctioned building plan.
Main peculiarity was that there was only one entrance of the whole building having an existence of a meter box at the half portion and stair case running on the said box to the upper floor, which is required to be removed to other suitable place for easy movement to that flat owners.
The furious condition may arise in future for the awkward condition of the only entrance of the big building.
It is very troublesome to the complainers that there is no permanent place of the OPs to place their difficulties at the time of their need".
The report speaks volume about the deficiency on the part of the developer perspective, the Ld. District Forum was quite justified in directing to complete the incomplete construction as per Ld. Engineer Commissioners' report and to hand over the Completion Certificate to the complainant/respondent no. 1 within three months from the date of order. In the Memorandum of Appeal also the developer has stated that they are ready to execute and complete the work of construction but the respondent no. 1 resisting them to complete the pending work.
The ground taken by the appellant appears to be flimsy and not acceptable because it is the respondent no. 1 Association who being flat owners/residents of the building had lodged the complaint before the Ld. District Forum and intended to sort out their difficulties and as such there is hardly any reason to belief that the respondent no. 1 Association themselves will stand in the way in dealing with the incomplete works of the building.
However, Ld. District Forum had no reason in directing all the opposite parties to hand over the Completion Certificate or to complete the incomplete construction as per Commissioner's report. It is well settled that after accepting the entire consideration amount as per Agreement, the developer is under obligation to - (a) deliver the possession; (b) execute and register the Sale Deed and (c) obtain Completion Certificate/Occupancy Certificate from the appropriate authority. It is the developer who undertook to raise the construction as per sanctioned building plan and as such the landowners cannot be blamed for non-obtaining of Completion Certificate or not to raise the construction as per sanctioned building plan. It is the bounden duty on the part of the developer/builder to construct the building in accordance with the sanctioned building plan obtained from the appropriate authority and further to obtain the Completion Certificate/Occupancy Certificate from the said authority and in this regard the landowners cannot be held responsible. Therefore, the Ld. District Forum should not have directed the landowners as well as developer jointly and severally to hand over the Completion Certificate or to complete the incomplete works as per Commissioner's report.
So far as the expenses borne by the respondent no. 1 amounting to Rs. 12,15,225/- as spell out in Paragraph-9 of the petition of complaint, the Ld. District Forum should not have passed any order because the flat owners did not obtain any permission from the Ld. District Forum before undertaking any such construction and as such for individual work done by the flat owners without permission of the Ld. District Forum or the developer cannot be penalised.
The direction given by the Ld. District Forum to pay compensation of Rs. 50,000/- for harassment and mental agony and imposition of Rs. 10,000/- as litigation cost appears to be justified and relevant but it is not understood how the land owners are responsible for the fault of the developer for which they will also bear the compensation and litigation cost. Therefore, it is the developer who should be liable to pay the compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- alone to the respondent no. 1 The Ld. District Forum has made it clear that if the opposite parties failed to pay the amount of compensation and litigation cost within 30 days, they shall have to pay punitive damages of Rs. 200/- per day. However, I do not find any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong-doing unrelated to actual loss suffered, such a claim has to be especially pleaded. The appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice and as such the order of punitive damages is liable to be set aside.
In view of the above, the impugned judgment/final order is modified to the extent that the opposite party nos. 1 & 2 i.e. the developer shall complete the incomplete construction work as per Ld. Engineer Commissioner's report and to hand over the completion certificate to the respondent no. 1/complainant within three months from the date of order. The Opposite Party nos. 1 & 2 shall pay compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- aggregating to Rs. 60,000/- to respondent No.1/complainant within 30 days from the date of order otherwise the amount shall carry interest thereon @ 8% p.a. from the date till its realisation.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER