State Consumer Disputes Redressal Commission
Sri Sanjay Khan vs Shreya Construction on 3 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/94/2016 ( Date of Filing : 04 Mar 2016 ) 1. Sri Sanjay Khan S/o, Lt. Arun Kumar Khan, 26/B, Selimpur Lane (Dhakuria), KOl - 700 031. 2. Smt. Chandra Ghosh, Rep. by her husband Sri Basantipad Ghosh W/o, Basanti Pad Ghosh, D/o, Lt. Arun Kumar Khan, 67, Om Nagar Near Water Tank, Kalamana Road, Tahsil - Kamptee, Dist - Nagpur, Pin - 441 002. ...........Complainant(s) Versus 1. Shreya Construction 143/157, Picnic Garden Road, P.S - Tiljala, Kol - 700 039. 2. Samaresh Halder S/o, Lt. Bishu Halder, 143/157, Picnic Garden Road, P.S - Tiljala, Kol - 700 039. 3. Rakesh Paswan S/o, J. Paswan, 143/157, Picnic Garden Road, P.S - Tiljala, Kol - 700 039. 4. Suman Dey S/o, Bulbul Dey, 143/157, Picnic Garden Road, P.S - Tiljala, Kol - 700 039. 5. Supriyo Das S/o, Raghu Nath Das, 143/19, Picnic Garden Road, P.S - Tiljala, Kol - 700 039. 6. Smt. Sandhya Singh W/o, Amar Kumar Singh, D/o, Lt. Arun Kumar Khan, 26/B, Selimpur Lane (Dhakuria), Kol - 700 031. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Barun Prasad, Mr. Sovanlal Bera, Advocate For the Opp. Party: Mr. Sumit Kr. Dey, Mr. Priyankar Dey Sarkar., Advocate Dated : 03 Jul 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of landowners against the development construction firm (Opposite Party Nos. 1 to 5) and a co-landowner (Opposite Party No.6) on the allegation of deficiency in services on the part of developer in a consumer dispute of housing construction.
Succinctly put, the Complainants' case is that one Arun Kumar Khan, who was the owner of a piece of land measuring about 3 cottahs and 24 sq. ft. situated at Premises No.26B, Selimpur Lane, P.S.- Garfa, Kolkata - 700031District- South 24 Parganas died on 09.12.1982 leaving the complainants, Smt. Bela Khan (wife) and OP No.6. In order to develop the said property, the legal heirs of Arun Kumar Khan had entered into a Development Agreement with OP No.1 represented by OP Nos. 1 to 5 for raising a multi-storied building thereon. As per Development Agreement, the landowners are entitled to four flats measuring about 425 sq. ft. more or less carpet area in every floor i.e. ground floor, 1st floor, 2nd floor and 3rd floor along with Rs.2,00,000/- payable to the owners. It was agreed that the developer shall complete the construction of the building within 24 months from the date of sanctioned building plan. The developer has also agreed to construct one small room and one toilet outside of the constructed building but inside of the partition wall and on backside of the building. The complainants have stated that the developer issued possession letter in the month of October, 2015 to the owners except the complainant no.2 Smt. Chandra Ghosh. The complainants have also alleged that the OP Nos. 1 to 5/developer did not provide completion certificate to the owners, having no alternative, the complainants sent a legal notice to the developer on 14.01.2016 and the same was received by OP No.1 but the other OPs intentionally avoided the same. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz. - (a) to direct OP Nos. 1 to 5 to pay delayed compensation of Rs.4,00,000/- to complainant no.1 and Rs.5,00,000/- to complainant no.2, to provide Completion Certificate of the building, to provide possession letter in favour of complainant no.2, to provide one small room with toilet on the back side of the building; (b) to pay compensation of Rs.10,000/- to the complainants for harassment and mental agony and (c) litigation cost of Rs.1,00,000/-.
The Opposite Party Nos. 1 to 5 by filing a written version have stated that the complainants along with OP No.6 and Smt. Bela Khan as landowners were entitled to get one flat having more or less 425 sq. ft. carpet area on the front side on the ground floor and on the 2nd floor and also one flat having more or less 425 sq. ft. carpet area each on the backside of 1st floor and 3rd floor and further they were entitled to get Rs.2,00,000/-. The contesting OPs have stated that they have already paid Rs.2,00,000/- to the landowners on 25.11.2011. On 22.03.2013 they could obtain a building plan for construction of a G+2 storied building. In accordance with the said sanctioned plan, the developer constructed a G+2 storied building in the said property. However, the landowners persistently demanding for construction of another floor to which they did not agree on the ground that for such illegal construction, Completion Certificate will not be available. On 20.02.2015 the OP Nos. 1 to 5 handed over possession of three flats more or less 425 sq. ft. carpet area each on the front side of ground floor, 1st floor and 2nd floor of the building and the landowners took physical possession of their allocated flats and shifted into them and started residing therein. However, the landowners illegally constructed the 3rd floor and complainant no.2 took possession of a flat on the illegally constructed 3rd floor of the premises which was developed by complainant no.1, OP No.6 and Smt. Bela Khan. Due to such illegal construction, at the instance of Executive Engineer, Building Department, Borough-X of the KMC lodged a complaint with the police for which one specific case being Garfa P.S. Case No.74 of 2015 dated 17.03.2015 was registered and a proceeding under Section 401A of KMC Act was initiated and registered before Ld. Municipal Magistrate, 3rd Court at Calcutta. In the said case, the complainant no.1, OP No.6 and Smt. Bela Khan were found guilty. The OP Nos. 1 to 5 have stated that they were not responsible for providing Completion Certificate and in this regard, the landowners have already received Rs.1,48,000/- on mutual arrangement for non-construction of 3rd floor and one small room with toilet. The OP Nos. 1 to 6 have stated that as there was no deficiency on the part of them, the complaint should be dismissed.
The Opposite Party No.6 i.e. one of the landowners by filing a written version have stated that OP Nos. 1 to 5 provided him possession in 20.02.2015 and she took possession of more or less 425 sq. ft. on the front side of the 3rd floor.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. At the time of final hearing, on behalf of OP Nos. 1 to 5, a brief notes of argument has been filed.
Admittedly, one Arun Kumar Khan, who was the owner of a piece of land measuring about 3 cottahs and 24 sq. ft. situated at Premises No.26B, Selimpur Lane, P.S.- Garfa, Kolkata - 700031District- North 24 Parganas died on 09.12.1982 leaving behind him the complainants, Smt. Bela Khan (wife) and OP No.6 as his legal heirs. In order to develop the said property, the legal heirs of Arun Kumar Khan had entered into a Development Agreement with OP No.1 represented by OP Nos. 2 to 5 for raising a multi-storied building thereon. As per Development Agreement, the landowners are entitled to four flats measuring about 425 sq. ft. more or less carpet area in every floor i.e. ground floor, 1st floor, 2nd floor and 3rd floor along with Rs.2,00,000/- payable by the developer. It was agreed that the developer shall complete the construction of the building within 24 months from the date of sanctioned building plan. The developer has also agreed to construct one small room and one toilet outside of the constructed of the building but inside of the partition wall and on backside of the building.
Evidently, in terms of the said agreement, the OP Nos. 1 to 5 has paid Rs.2,00,000/- to the complainants, OP No.6 and Smt. Bela Khan on 25.11.2011. The fact remains that though the parties were desirous to obtain a G+3 sanctioned building plan but the developer could obtain sanctioned building plan on 22.03.2013 for construction of a G+2 storied building. Thereafter, the developer started construction in order to complete the building within 24 months from the date of obtaining sanctioned building plan. In any case, in terms of the agreement and the sanctioned building plan, after construction of the building, the developer handed over possession of three flats measuring more or less 425 sq. ft. carpet area each on the front side of ground floor, 1st floor and 2nd floor of the building and thereafter, the complainants, OP No.6 together with Smt. Bela Khan took physical possession of their allocated flats and residing therein.
The evidence on record clearly indicates that the landowners, particularly complainant no.1, OP No.6 and Smt. Bela Khan raised an illegal construction on the 3rd floor of the building. For such unauthorised construction, one case being Garfa P.S. Case No.74/2015 dated 17.03.2015 under Section 401A of KMC Act was registered against complainant no.1, OP No.6, Smt. Bela Khan and also against OP Nos. 2 & 3. Ultimately, a case being M/F 91/2015 under Section 401A of KMC Act was tried by the Ld. Municipal Magistrate, 3rd Court at Calcutta and in a judgement dated 03.06.2016 the Ld. Magistrate exonerated OP Nos. 2 & 3 (developers) and acquitted them under Section 248(1) of Cr.P.C. but held complainant no.1, OP No.6 and Smt. Bela Khan are guilty and convicted them under Section 248(2) of Cr. P.C. for guilty of the offence u/s. 401A of KMC Act and sentenced them to pay fine of Rs.2,500/- each id. to suffer S.I. for 15 days. Without challenging the said order, complainant no.1, OP No.6 and Smt. Bela Khan paid the fine. Therefore, it is evident that it is not the developer but the landowners themselves have illegally constructed the 3rd floor of the building and as such it would be quite difficult to obtain Completion Certificate and in this regard no liability can be attributed upon the developer. In order to settle the matter, the developer has paid Rs.1,48,000/- to the landowners as compensation for their failure to obtain sanctioned plan and to construct 3rd floor and one small room with toilet on the backside of the building.
Surprisingly enough, the complainants did not aver anything in this regard in their petition of complaint. The complainants have also suppressed a vital fact that a proceeding under Section 401A of KMC Act was initiated against them in which complainant no.1, OP No.6 and Smt. Bela Khan were held guilty by a competent Criminal Court and they withheld the judgement/order passed by the Ld. Municipal Magistrate, 3rd Court at Calcutta in M/F 91/2015 (Registration No.86276/2015).
In S.P. Chengalvaraya Naidu (dead) - vs. - Jagganath (dead) & Ors. reported in (1994) 1 SCC 1 the Hon'ble Supreme Court has observed thus :
".........one who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and others unscrupulous persons from all works of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".
The above observation and anxious consideration of the Hon'ble Apex Court leads me to hold that the complainants should have lodged the complaint in a fair manner so that the Court of Law may arrived at a correct decision for imparting justice between the parties. In the case beforehand, the complainants have totally suppressed that due to their fault, it has become herculean task to obtain Completion Certificate from the competent authority and knowing about their fault, the landowners are trying to overcome the situation at the cost of the developer and their dubious attempt has been failed.
Considering all the above, I do not find any deficiency on the part of OP Nos. 1 to 5 to deal with the landowners in respect of the instant dispute. Since the developer has fulfilled their part of obligations as per terms of Development Agreement, no amount of deficiency on their part could be deleted.
Consequently, the complaint is dismissed on contest. However, there will be no order as to costs. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER