State Consumer Disputes Redressal Commission
Indralok Apartment Flat Owners ... vs Smt. Rama Majumder. on 15 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/7/2011 1. Indralok Apartment Flat Owners Association. Daulatpur, B.B.T. Road, P.S. Mahestala, Kolkata - 700 141, Dist. South 24 Parganas, Represented by Sri Ajoy Roy Chaudhuri (Secretary) ...........Complainant(s) Versus 1. Smt. Rama Majumder. W/o Sri Ashok Majumder, Yasoda Bhawan, B.B.T. Road, P.O. Daulatpur, P.S. Mahestala, Kolkata - 700 141, Dist. South 24 Parganas. 2. Smt. Sandha Ganguly W/o Sri Arup Ganguly, Nungi Sanipara, P.O. Batanagar, P.S. Mahestala, Kolkata - 700 140, Dist. South 24 Parganas. 3. Sri Asok Majumder S/o Late Jashodajiban Majumder, Yasoda Bhawan, B.B.T. Road, P.O. Daulatpur, P.S. Mahestala, Kolkata - 700 141, Dist. South 24 Parganas. 4. Sri Arup Ganguly Nungi Sanipara, P.O. Batanagar, P.S. Mahestala, Kolkata - 700 140, Dist. South 24 Parganas. 5. The Chairman, Maheshtala Municipality P.O. Maheshtala, Dist. South 24 Parganas. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Barun Prasad., Advocate For the Opp. Party: Mr. Pinaki Roy, Mr. Anirban Dhar, Advocate Mr. Pinaki Roy., Advocate Mr. Subrata Ghosh., Advocate ORDER Date of hearing : 8th day of September, 2015 Date of judgment : Tuesday, the 15th of September, 2015.
JUDGMENT This is a consumer complaint u/s 17 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') is at the instance of some flat owners of an apartment being consumers against the Opposite Parties who are land owners and Developers with allegation of deficiency in service valued at Rs.41,11,225/-.
In a nutshell, the complaint case is that they are an unregistered Association and by a resolution authorised one Shri Ajoy Roy Choudhury, Secretary of the Association, to represent before this Commission. The flat owners of Indralok Apartment approached the opposite party Nos.1 to 4 for purchasing of their respective flats against consideration price as decided and accordingly agreement for sale has been executed by and between the parties. After construction, the possession of the flats were given to the flat- owners on 09.09.2008 but several incomplete works were pending and also there were several defects in construction works. On 14.4.2008 the O.P's. by one Deed of Declaration admitted the incomplete and defective works but till date deliberately taken no steps to comply with their commitment. In the month of Februry, 2009 in presence of the Maheshtala Municipality, the O.P. Nos. 1 to 4 agreed to complete and remove all the deficiencies within 15 days but the O.P's. No. 1 to 4 did not bother to remove the defects and deficiencies. Hence the complaint with the following prayers viz. : (a) for a direction upon the O.P. Nos. 1 to 4 to repair/remove defects, deficiencis of building as mentioned in paragraph 12 of the complaint and/or to pay costs of the sum of Rs.21,51,225/- along with interest @ 12% p.a.; (b) for an order of inspection of the building by an engineer; (c) to pay compensation to the tune of Rs.20,00,000/- for mental agony and harassment; and (d) Rs.20,000/- for litigation cost, etc. The O.P. Nos. 1 & 3 by filing a joint written version has disputed the claim stating that the complaint is not maintainable as the complaint has not been filed in accordance with section 12(1)(c) with the permission of the court. The contesting O.P's. have categorically stated that the construction of building has been completed, sewerage system and electrical fittings have already been done and there is no deficiency of service on the part of them and as such the complaint is liable to be dismissed with costs.
Both the parties filed evidence on affidavit, questionnaire and reply, etc. along with documents in support of the respective cases.
Now, in order to determine the controversies between the parties the following points require to be adjudicated :
(1) Is the complaint maintainable in its present form ?
(2) Was there any deficiency in service on the part of the O.P. No.1 to 4 as service providers ?
(3) Are the complainants entitled to reliefs, as prayed for ?
DECISION Point No.1 :
The maintainability of the case has been challenged on behalf of the O.P's. on the ground that one Shri Ajoy Roy Choudhury has filed the consumer complaint on behalf of Indralok Apartment Flat Owners' Association which is not a registered Society. In paragraph 1 of the complaint it has been categorically mentioned that Indralok Apartment is an unregistered Association which has been established by flat owners as per Board of Resolution. The Board of Resolution has been annexed with the petition of complaint which bears the signatures of all other flat owners. Since the interest of all flat owners are the same they have filed the instant complaint by adopting a resolution authorising Shri Ajoy Roy Choudhury to initiate the complaint. Ld. Advocate for the O.P's. has submitted that since the complainants/Flat Owners' Association is not a registered Association nor it is a recognised Association and therefore it cannot file a complaint against O.P's under section 12(1)(b) and (c) of the Act without taking permission of the Court. In reply to the same Ld. Advocate for the complainant has referred section 2(m) of the Act which provides -
''person' includes :
A firm whether registered or not, A Hindu undivided family, A co-operative society, Several other Associations of persons whether registered under the Soieties Registration Act, 1980 (21 of 1860) or not.'' Therefore, if we have a look to the relevant provision it would be quite clear that an unregistered Association may also be treated as a 'person' to ventilate their grievances under the Act.
Needless to say, the members of the complainants/Association are purchasers and O.P. Nos. 1 to 4 being Developers/land owners are service providers. Since all allegation of deficiency of service has been lavelled by the complainant against O.P. Nos.1 to 4 and that too in presence of O.P. No.5 who is the Chairman of Maheshtala Municipality where the disputed Apartment is situated, we must say that the instant complaint is maintainable under the law.
Accordingly, the point No.1 is decided in the affirmative and in favour of the complainant.
Point No.2 :
In para 12 of the petition of complaint, the complainants have spelt out the deficiencies suffered by them. According to the complainants, the O.P. Nos. 1 and 2 have defaulted in the following fields -
job completion certificate, (b) incomplete building construction, (c) no sewerage system and soak pit causing entire waste water are dumped at the basement of the building causing ground floor always fulfil with rotten water causing severe damage of the building, (d) the entire building is running with temporary electrical fittings and fixture which may cause threat to life, (e) common area has not been provided, deviated for the benefit of the opposite parties No.1 to 4, (f) common passage and lobbies not provided as per building plan, (g) water pump, water reservoir for drinking water, water facility to be provided from Garden Reach water supply, (h) to remove the deficiencies as per Deptt. Of Fire Service, Govt. of West Bengal as per their letter dated 05.01.2011, (i) to provide entrance with safety and security of the flat owners, (j) to provide front area as open terrace by removing illegal construction of shop rooms, provide main gate, (k) to provide boundary wall for the entire building and to install security staff room with iron grill gate (l) to provide light arrangement inside the staircase, common area and outside of the building for security purpose, (m) to repair roof of the building so that rain water will pass smoothly with water proof treatment of the roof, (n) electrical room, pump room, darwan room, (o) staircase should be repaired and separated as per building plan between 1st floor of the commercial unit with other floors of the building which has been strongly objected by the Deptt. of Fire Service, Govt. of West Bengal, (p) to paint exterior of the building with standard specification, (q) to install lift and (r) to take initiative for registration of Indralok Apartment Flat Owners Association.
As the O.P. Nos. 1 to 4 refuted the allegations of the complainants in this regard, at the instance of the complainants one Engineer Commission was appointed in connection with this case. Mr. Shaktipada Bera, Engineer Commissioner after giving the information to the parties went to the spot and inspected as per direction of the Commission. After inspection the Ld. Engineer Commissioner has submitted his report before this Commission on 10th February 2012. Though the O.P's. tried to foil the attempt of the complainants to have inspection through Engineer Commissioner but ultimately the truth has come out before this Commission. During inspection the Engineer Commissioner noticed several shortcomings like - (a) deviation in the construction with respect to sanctioned plan, (b) specific instances of improper work in several areas of execution (c) lacunae in the area of waste water management; (d) no preventive measure to block trespassing, no complete water proofing arrangement of the building; )f) no arrangement is made to cope with fire hazards; (g) structures are not promoted.
The Ld. Engineer Commissioner put forward several suggestions to remove the defects indicated hereinabove in para 21 of his report. The said report is supported by field notes and other documents. The report has been accepted and against the said acceptance of report no appeal has been preferred. Therefore, there is hardly any reason to disbelieve the contents of the report of Engineer Commissioner which clearly demonstrates deficiency in service on the part of the O.P. Nos.1 to 4.
In that view of the matter, the point No.2 is also decided in favour of the complainants and disposed of accordingly.
Point No.3 :
In view of our foregoing discussions it is abundantly clear that the O.P. 1 contravenes the terms of the agreement in constructing the building and even they did not take any step for fire safety in contravention to section 11(c) of the West Bengal Fire Services Act, 1950. The Executive Officer of the Maheshtala Municipality has made an allegation against O.P's. for deviation from the original sanctioned plan. In that view of the matter the complaints are entitled to get the relief as prayed for. In other words, a direction should be given to the opposite party Nos. 1 to 4 to repair/remove the defects, deficiencies as embodied in paragraph No.12 of the complaint within the time frame otherwise to pay the cost of the same to the tune of Rs.11,00,000/- along with interest thereon @ 10% p.a. from 14.4.2008 i.e., the date of declaration executed by the O.P's. in favour of Smt. Krishna Roy Choudhury, wife of the signatory to the petition of complaint.
The complainant is also entitled to compensation inasmuch as they had to suffer a loss for long 7 years and during this long span of time they have been suffering from mental agony, harassment and as such they must be compensated with a compensation which quantified by us to Rs.5 lakhs and besides the said compensation the complaints are entitled to litigation cost which is assessed at Rs.5,000/-.
In the result, complaint succeeds.
It is, accordingly O R D E R E D that the complaint case is allowed on contest against O.P.Nos. 1 & 3 with costs of Rs.5,000/- and ex parte against the rest without any costs.
The O.P. Nos. 1 to 4 are directed to repair/remove the defects or deficiencies of the building as mentioned in paragraph 12 of the petition of complaint within 3 months from date, failing which, they must pay the cost of the same to the tune of Rs.11,00,000/- along with interest thereon @ 10% p.a. from 14.4.2008.
The opposite parties must also pay compensation of Rs.5,00,000/- for causing mental agony and harassment of the flat owners of the complainant Association and to pay litigation cost to the tune of Rs.5,000/-. The aforesaid amount of compensation and litigation cost must be paid within 30 days from this date.
We make it clear that in the event of failure on the part of the opposite parties to comply with the order they may face consequences in accordance with section 27(1) of the Act.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER